The Constitutional Ambitions of Indigenous Politics

Pity that “poor fella”, the Australian Constitution, one of the “most maligned and vilified victims” of Australia’s history wars. Quadrant editor Keith Windschuttle stands up for the dignity of that unapologetically unreadable document in his 2016 book, The Break-up of Australia: The Real Agenda behind Aboriginal Recognition. Australia’s Constitution is, as Windschuttle is the first to admit, a “practical charter” whose “principal function is to distribute various powers between the Commonwealth and the states”. Only a true patriot or a trained lawyer could love it.

It would take a miracle to amend it. Yet with the Senate’s Legal and Constitutional Affairs Committee reconsidering the meaning of Australian nationhood and the Morrison government appointing veteran Aboriginal activists Marcia Langton and Tom Calma to advise it on the design of an “Indigenous Voice”, constitutional change is in the air. Windschuttle’s dreaded “break-up” of Australia doesn’t seem to be on the agenda (at least, for now), but there is real pressure to recognise some kind of indigenous sovereignty in a preamble to the Constitution and to make various amendments to privilege indigenous Australians over other Australians. Moves are also afoot to accomplish via legislative and judicial means what might be politically too difficult to put to a constitutional referendum. At stake is nothing less than a wholesale reinterpretation of the legal basis of the Australian state.

Just as the republican movement has all but accomplished its major political goals (with the singular but purely symbolic exception of the designation of the head of state as “president”) despite its resounding loss in the 1999 referendum, the indigenous recognition movement is within touching distance of achieving many of its own constitutional goals, with or without a referendum. In its February Love and Thoms rulings, the High Court effectively recognised the priority of indigenous custom over Australian law, giving ill-defined indigenous communities and their “elders” the power to grant people unalienable residency rights. Native title rights flowing from the 1992 Mabo ruling and the subsequent Native Title Act continue to expand, with or without new legislation. And Kevin Rudd’s 2009 endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, even though devoid of formal legal significance, has the potential to guide future High Court judgments towards greater support for indigenous sovereignty.

The geographical “break-up of Australia” presaged in Windschuttle’s title is unlikely, not least because it would contradict the interests of the indigenous intellectual class: true political independence would mean giving up subsidies and collecting taxes, which no intellectual really wants. But in this age of multicultural rhetoric and indigenous lawfare, the break-up of Australia on racial and ethnic lines is an all-too-real possibility. The coming climax of the battle for indigenous sovereignty has thus made Windschuttle’s Break-up once again topical, if indeed it ever lost its relevance.

The 2017 Quadrant review of the book, by no less an authority than former High Court judge Dyson Heydon, said that Windschuttle had “unquestionably shifted an onus of refutation firmly onto the shoulders of his numerous critics”. That was the lawyerly verdict of a senior jurist and legal scholar (a former dean of Sydney Law School) who needed no education in the intricacies of Australian constitutional law. For the rest of us, Windschuttle’s book is an indispensable touchstone for evaluating the often outlandish claims made in the otherworldly world of indigenous scholarship. In this thoroughly politicised field, it is common to see polemical fabrications masquerading as academic treatises. Even Bruce Pascoe’s phantasmagoria Dark Emu is now routinely cited in (Australian) academic journals. What’s strange is to find an academic treatise masquerading as a polemic. But that’s exactly what The Break-up of Australia is. Its inflammatory title belies the calm, collected, painstakingly-researched pages over which it presides.

It may be only four years since the publication of Break-up, but it is nonetheless high time for a reconsideration and reappraisal. This review approaches the book on its own terms, summarising the contents of each of its three major parts before offering an overall evaluation and reflecting on its implications for Australia’s indigenous sovereignty debate. Whatever your position on that debate—and even Quadrant readers are unlikely to agree on any one position—The Break-up of Australia is an indispensable reference for anyone who is honest about wanting to hold a debate at all. Windschuttle certainly has strong opinions on indigenous affairs, as every Quadrant reader will appreciate. But The Break-up of Australia, though clearly motivated by his opinions, does not seem to have been coloured by them. If Windschuttle’s title is self-indulgent (and his subtitle even more so), his footnotes are pure public service.


Part one: The demands and problems of a black state

The Break-up of Australia opens with a prologue that focuses on the 2012 Australia Day riot in the heart of Canberra’s government district, followed by five chapters on the challenges facing Aboriginal Australia. Windschuttle correctly ascertains that the “Aboriginal political class has decided it is unwilling to accept a position in contemporary Australian as an ethnic minority group” and traces the intellectual underpinnings of that decision in indigenous studies and critical race theory. The latter is a movement in American legal scholarship that sees race as inseparably embodied in the law, so that a legal system formulated by white men (such as the United States Constitution) can never be reformed to serve the needs of a racially diverse society. Although the focus of critical race theory in the United States has been on the historical legacy of slavery and the repression of African-Americans (who, under this theory, are not Americans at all), its main application in Australia is to the status of the indigenous peoples.

As the Tasmanian Aboriginal activist Michael Mansell puts it, the indigenous peoples of the continent must choose whether to be “Aboriginal Australians” (Aboriginal members of the Australian community) or “Australian Aboriginals” (Aboriginal people who happen to live on the continent of Australia). In the latter view, the Australian constitution is a racialist (and implicitly, if not explicitly, racist) document to which indigenous peoples owe no allegiance. While, in Windschuttle’s appraisal, most Australians (including, apparently, even revered conservatives like John Howard and Tony Abbott) “see constitutional recognition as a courteous symbolic gesture with no real consequences”, the Aboriginal intellectual establishment views constitutional recognition as a first step towards “the establishment of a politically separate race of people”. This is the basis for Windschuttle’s warning about the “potential break-up of Australia”.

Windschuttle explains in Chapter 2 that Aboriginal intellectuals “have argued consistently for forty years that gestures like treaties and constitutional amendments are not ends in themselves but simply one concession by white people in the long journey towards the real goal” of Aboriginal sovereignty. And the intellectuals he quotes certainly do explicitly state that they want “sovereignty” in the sense of an independent, self-governing country, though how much they really mean it remains open to question. Windschuttle sees native title determinations as creating a potential territorial basis for such an Aboriginal state, whether it ultimately takes the form of a sub-sovereign state within the Australian Commonwealth or a fully independent, internationally-recognised country. This is no overwrought speculation: Windschuttle is merely taking Australia’s most prominent Aboriginal intellectuals at their (documented) words.

Undoubtedly, a national referendum on the creation of an Aboriginal state (whether sub-sovereign or fully sovereign) comprising more than half of the territory of Australia would fail to win the double-majority (in each state and in the country as a whole) required to pass constitutional muster. But Windschuttle presciently argues that no such proposal would ever be put to the people. Instead, the strategy of Aboriginal intellectuals (abetted by sympathetic non-indigenous scholars and jurists) is to seek a seemingly innocuous amendment on indigenous recognition, which could then be expanded through judicial activism into something much more consequential. The key to this strategy is the demonstrated appetite of top courts (not just in Australia, but all over the world) to make law through overly generous self-interpretations of their own powers.

Windschuttle goes on to paint a picture of what an Aboriginal state might look like. He details the shortcomings of so-called “customary law”, explains that there is no one customary law that applies to all Aboriginal communities, exposes the extreme violence of Aboriginal customary laws, and highlights in particular the lamentable status of women in traditional Aboriginal society. The continuing problem of violence against women in Aboriginal communities is well known, but Windschuttle comprehensively documents it all the same. He leaves readers in no doubt that any future Aboriginal state could not realistically be based on past Aboriginal customs, in which case the central premise of critical race theory falls apart: if an Aboriginal state must be constituted on “white men’s laws”, then (so the theory goes) it would be no more than a neo-colonial reflection of the racist society that spawned it.

An examination of the now-defunct Aboriginal “high culture” of the pre-colonial era convinces Windschuttle that it is impossible to identify Aboriginal people on the basis of a continuing shared culture, implying that any constitutional recognition of Aboriginal special rights must be based on race. The old culture is gone, and the one that has replaced it (including gangs with names like “Judas Priest” and “Kylie Girls”) is no longer distinctively Aboriginal. Much of what passes for Aboriginal culture today is a re-imagination of practices that disappeared many generations ago, often re-created on the basis of anthropologists’ reports. That is not to demean the sincerity with which people celebrate their cultural heritages. It is merely to recognise that the direct chain of cultural transmission from pre-colonial Australia has petered out, or at least become so attenuated and contaminated as to no longer form a serviceable basis for the identification of distinct national communities. A future Aboriginal state or states will unavoidably be based on bloodlines, not culture.

Highlighting the extreme dysfunctionality of the closest thing to Aboriginal states existing in Australia today, the remote communities, Windschuttle is pessimistic about the prospects for Aboriginal self-governance. The truly scary conditions in remote communities need no review here, but readers wanting to judge for themselves the sustainability (or lack thereof) of actually existing Aboriginal societies today will find an overabundance of evidence in Chapter 5 of The Break-up of Australia. Supporters and critics of Windschuttle’s overarching thesis may disagree over the reasons for the horrific social statistics of Australia’s remote Aboriginal communities, but no one can find in them hopeful signs of the potential for self-governance of a future Aboriginal state. Theorists can legitimately debate what kinds and quality of civic institutions might have emerged in an Aboriginal state that had never experienced colonialism (British or otherwise), but practical policy-makers must accept that there is no way there from here.


Part two: The defamation of the Constitution

If there is one thing that seems to fire Windschuttle’s passion more than anything else, it is his pride in Australia’s turn-of-the-twentieth-century constitutional settlement. Chapters 6 to 9 of The Break-up of Australia should be required reading in all Australian law schools, and indeed might form the basis for a constitutional history unit in any school. If Windschuttle’s criticisms of Australian legal scholars are correct (and his extensive quotations and citations suggest that they are), perhaps this part of the book should be assigned as continuing education for the country’s constitutional law professors as well. Influenced (again) by critical race theory and its broad-brush criticisms of America’s slave-owning colonial elites, Australian legal scholars seem to have simply assumed that America’s historical problems were also its own. In these four chapters, Windschuttle thoroughly debunks this strange American imperialism of guilt, demonstrating that Australia’s “founding fathers” bore no resemblance to the hypocritical racists of America’s colonial slavocracy.

To begin with, there never was slavery in Australia. Australia’s 1901 Constitution is a thoroughly modern document, lacking both the grandiloquence and the old-fashioned Whiggism of the American Constitution. It shares with its older American cousin the purpose of subsuming multiple pre-existing jurisdictions under a single federal government, and it certainly benefited from the lessons of American federalism (then more than a century old), but neither it nor the majority of its authors seem to have suffered from the American pathologies of institutional racism and indigenous exclusion.

Quite the contrary. Consider the controversial Section 25 of the Australian Constitution, which has twice been unsuccessfully targeted for repeal. Section 25 provides that “if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted”. It has often been compared to the notorious “three-fifths” compromise in the United States Constitution, which provided that federal representation and taxes should “be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons”—that is, slaves.

The parallels are purely superficial, as Australians of the time would have clearly understood. The purpose of America’s three-fifths compromise was to give additional representation (and thus additional political power) to slave states, giving them partial credit for non-citizens whom they held in perpetual slavery. The purpose of Australia’s Section 25, as Windschuttle documents, was to penalise Queensland and Western Australia for not admitting indigenous people into their civic communities: if they couldn’t vote, these states couldn’t take credit for them. Windschuttle similarly debunks the oft-repeated claim that Section 127 of the Constitution (repealed in 1967) mandated that Aboriginal people should not be counted in Australian censuses. One need only consult actual census records to see that they were counted, though Windschuttle digs much deeper to reveal the real reasons for this seemingly obscure constitutional provision. Its purpose, again, was to prevent Queensland and Western Australia from inflating their representations in Parliament by taking credit for tens of thousands of “aboriginal natives”—those Aboriginal people still living outside modern society—while offering them neither voting rights nor government services.

In the same vein, Section 51(xxvi) of the Constitution, before its amendment in 1967, gave Parliament the power to legislate with regard to “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. The 1967 amendment removed the words “other than the aboriginal race in any State”, thus allowing for the federalisation of indigenous affairs, which had previously been a state responsibility. Legal scholars steeped in American critical race theory have interpreted Section 51(xxvi) as a racist provision to allow for discrimination against “Afghan” (Middle Eastern), Chinese and “Kanaka” (Pacific islander) labourers. Windschuttle shows that its effective purpose was to allow the federal government to legislate basic safeguards for these very same groups. Once again, exploitative Queenslanders were a prime target. The fact that the amended Section 51(xxvi) now forms the constitutional basis for all of the Australian government’s pro-indigenous policies should have tipped Australia’s legal establishment to the fact that its true motivation was ameliorative, not prejudicial.

In Chapters 8 and 9, Windschuttle goes to great lengths to debunk the academic consensus that “the Australian Constitution is a racist document produced by a racist society”. His primary bête noire is the former (then serving) Chief Justice of Australia, Robert French. Where French seems to base his views on categorical generalisations about the supposed universal racism of everyone who lived before the 1960s, Windschuttle goes back to detailed biographies and primary sources. He is particularly concerned to rehabilitate Samuel Griffith, who preceded French in the chief justice’s chair by more than a hundred years. He characterises Griffith’s efforts to stamp out “coolie” labour as “an egalitarian attempt by the labour movement against cheap wages and crude conditions … and an enlightened campaign by politicians to rid their society of the vestiges of the serfdom of the old world of Europe and the slavery of the new world of the Americas”. Griffith’s language may not always conform to later linguistic sensibilities, but Windschuttle is convinced that his heart was in the right place.


Part three: The ruinous influence of white intellectuals

The final part of The Break-up of Australia debunks the romantic myths propagated by three of Australia’s most influential non-indigenous commentators on Aboriginal affairs: the economist and civil servant H.C. “Nugget” Coombs, the historian Henry Reynolds, and the anthropologist W.E.H. Stanner. In Windschuttle’s telling, much of the blame for the misery born of Australia’s failed Aboriginal policies of the last fifty years must be laid at the feet of these three men—and Windschuttle’s telling is utterly convincing. Sometimes it seems as if the worst enemies of indigenous peoples are their greatest white champions, because those supposed supporters are often more interested in promoting the realisation of their own “noble savage” fantasies than in finding ways for indigenous people to live fulfilling lives in modern society. The realities of life in remote Aboriginal communities explode the romantic myth that it is possible to re-create traditional indigenous life in contemporary Australia—if, indeed, it were even desirable to do so.

After stepping down as Governor of the Reserve Bank in 1968, Coombs had a whole second career as an advocate for Aboriginal sovereignty. Peddling the theory that the British settlement of Australia was illegal in international law and that a treaty with Aboriginal elders was the only way to legitimise the Australian state’s presence on the continent, he never seems to have considered the implication that those elders could simply say “no”. Although Windschuttle does not push the issue, anyone who is serious about the legal need for (as opposed to the political expediency of) a treaty transferring sovereignty from Aboriginal peoples to the Australian state must be willing to take no for an answer and hand over the keys to the continent. On a more practical level, the real damage done by Coombs, in Windschuttle’s telling, was his tireless criticism of assimilation, which in effect amounted to an endorsement of segregation. The remote communities promoted by Coombs have not turned out the hunter-gatherer idylls he expected. As Windschuttle amply documents, they are harsh, Hobbesian environments where the only gathering going on is the gathering of government handouts and the only hunting is the hunting of fellow human beings.

Windschuttle’s Chapter 11 on Henry Reynolds focuses on the “frontier conflict” thesis, the meaning of “nation”, doctrines of sovereignty, and the history of the concept of terra nullius, while his Chapter 12 on Bill Stanner focuses on the passing of Aboriginal “high culture” in the late nineteenth and early twentieth centuries. Both Reynolds’s “frontier conflict” thesis and Stanner’s “high culture” thesis represent romantic reconstructions of the past as it must have been in order for their models of the present and future to ring true. Both scholars seem to have been genuinely devoted to their causes, but as always when politics collides with scholarship, scholarship suffers. These two chapters make for interesting reading, but their most important function is to provide the background for Windschuttle’s climactic Chapter 13, which directly addresses the nature of British settlement in Australia.

In this chapter, Windschuttle marshals an extraordinary mass of evidence in support of the argument that the overarching narrative of British settlement was one of slow frontier expansion accompanied by continuous Aboriginal “coming in”. He scathingly dismisses the alternative “invasion and resistance” model, showing that however the newcomers may have been perceived (and it must be admitted that it is impossible for anyone, indigenous or settler, to know this now), it is certain that there was no systematic violent resistance to British colonialism in Australia. The “intelligent parasitism” of “coming in” was the dominant model of indigenous-settler relations from two weeks after the Bennelong party’s ritual spearing of Governor Phillip in 1790 until the early twentieth century. A cynic might surmise (though even the notoriously uncompromising Windschuttle is too politic to say it) that the “intelligent parasitism” of “coming in” continues to be the dominant mode of indigenous-settler relations even today.


What is to be done? The “fourth period” of Australian history

Sometimes it seems as if the Aboriginal sovereignty debate is being conducted in some kind of intellectual fantasy-land. Windschuttle rightly ridicules the claims of the Royal Australian and New Zealand College of Psychiatrists that constitutional recognition for indigenous peoples “would make a real difference to the lives of Indigenous Australians, and is an important step to support and improve the lives and mental health of Indigenous Australians”. More likely, as Windschuttle asserts, “the idea that a sizeable number of Aborigines suffering mental illness would have heard of the existence of this Act is beyond belief”. Constitutional recognition proposals may be reasonable on their own terms (though Windschuttle persuasively argues that the proposals currently on the table are poorly structured, and even dangerous), but they will not solve the very serious problems that plague Aboriginal communities, especially remote communities, in Australia today.

Those problems are in some cases so extreme that it seems as if nothing short of a fresh start can solve them. Aboriginal Australians and their non-indigenous interlocutors alike must accept the fact that a remote community like Wadeye in the Northern Territory, where according to the 2016 census fewer than 300 of its 1200 adult residents have any kind of job, is simply not sustainable. (Without jumping to conclusions, it seems worth noting that Wadeye has a non-indigenous population of approximately 300 people.) No one will choose to live by hunting kangaroo and gathering grubs when government benefits are available with which to shop for packaged foods, and thankfully it is inconceivable in Australia to force people to live traditional lifestyles against their will purely for the sake of cultural survival, as is still done today in Brazil. Sympathetic propagandists may not want to accept such realities, but there should be no place for indigenous Bantustans in twenty-first-century Australia.

Windschuttle is critical of the “three waves” periodisation of Australian history into an Aboriginal phase, an Anglo-Celtic phase, and a multicultural phase. He is correct to argue that this periodisation is “true for the continent, but untrue for the nation”. But it is nonetheless a useful way to think about the trajectory of Aboriginal life on this continent. In his classic 1902 essay What Is to Be Done? the Russian revolutionary V.I. Lenin famously periodised the much shorter history of Russian social democracy into three phases: an embryonic phase with few members but much theory, an intermediate phase of struggle amidst rapid social change, and a final phase of “disunity, dissolution, and vacillation”. Looking forward to a fourth phase, he believed that the “consolidation of militant Marxism” would solve the problems of the Russian people, just as many Aboriginal activists in Australia today put their faith in the emergence of a militant Aboriginal state. Unfortunately for Russia, Lenin’s hopes eventually came to pass.

But the final plea of Lenin’s What Is to be Done? wasn’t for militant Marxism. It was for a much more immediate objective: to “put an end to the third phase”. It is impossible to say with any certainty what the fourth phase of Australian Aboriginal history should be, but it should be clear to everyone that the current phase must end. When idealists, reformers, revolutionaries, or just plain good souls look for data on which to form their policies to shape the future of Aboriginal Australia, they should turn to The Break-up of Australia. They will find it clearly written, exhaustively researched, and comprehensively indexed. Most of all, they will find it honest. Honesty can be a hard sell, these days as any days. But it’s what Australia’s indigenous debate needs most. If you want children’s fables of an imagined Aboriginal past, read Dark Emu. If you want the facts, read The Break-up of Australia.

Salvatore Babones is an associate professor at the University of Sydney and a frequent contributor to Quadrant.

  • Peter OBrien

    Salvatore, this is a very comprehensive review of an important book. Congratulations in providing a level of detail that is absent in most book reviews. I have read BreakUp at least four times and continue to marvel at Keith’s insights, scholarship and most importantly, his very readable style. You don’t have to ‘wade through’ Break Up. Keith’s ideas leap off the page at you. I’ve said it before and I say it again, this is a book that everyone should read.

  • Peter Sandery

    I agree with Peter, Salvatore and your idea of assigning chapters 6 to 9 as essential reading for practising and budding constitutional lawyers, is a great one. In the few conversations I have had with some, I am surprised at their lack of understanding of the underlying philosophy of this and other laws. It shows clearly in many judicial decision as well.

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