The Aboriginal People, the Constitution and the Future

The Prime Minister has declared his support for a proposal for a referendum to alter the preamble to the Constitution to include a form of “recognition” of the Aboriginal people and has called for a public “conversation” on the subject. Developing a form of words for this purpose will be the duty of a committee he has established. The Labor Opposition, before losing office, appointed an expert panel that recommended alterations to the body of the Constitution, such as removing certain sections dealing with “race” and adding a new section to “advance” Aborigines and Torres Strait Islanders. Strong in-principle support for a referendum is also coming from representatives of the Aboriginal people and a variety of non-government and non-Aboriginal organisations and prominent individuals. So, provided there is widespread agreement with the form of words to appear in the referendum, the prospects for success look bright. It seems that such a referendum would not be held until next year.

Any alteration to the Constitution is important. Not only is the form of words important, it is also important that their implications—legal, social and political—be considered. This article surveys these issues. The conclusions reached indicate dangers and the need, beyond the proposed constitutional amendment, for a broader reflection on the history behind the current initiative and the attitudes and policies that might inspire the future in Aboriginal affairs.

This referendum proposal continues various reconciliation measures and symbolic gestures (such as the Apology by the federal parliament) and the Intervention that reflect three aspects of popular opinion. First and foremost is the sustained and abundant goodwill of non-Aboriginal Australians eager to acknowledge Aboriginal disadvantage and to do something about it; second is the widespread dismay expressed at the spectacle of intolerable situations of violence, abuse and social anarchy in several Aboriginal communities; and third is the hope that the fullness of Australian life will eventually be extended to those Aboriginal people yet to join the approximately 350,000 living a mainstream urban Australian life. These include another 145,000 Aboriginal people living in “disadvantaged urban and regional centres”, plus a smaller but significant percentage in remote communities “where disease and ill-health rage” and where educational facilities leave much to be desired. It is not surprising, then, that a greater realisation of what is going wrong, the prospects of improvement and a wish to do more should stir public interest in the referendum proposal and muster substantial support.

The current movement is a revival of a previous attempt for a new preamble at the Constitutional Convention of 1998. This was part of the deliberations on a formula for implementing a constitutional change to establish Australia as a republic. That proposal, along with a new preamble, was subsequently rejected. However, the present movement to change the Constitution goes beyond the preamble to include proposals to change the body of the Constitution as well.

Amending the preamble is not a trivial matter even if, as declared in the previous failed attempt, it is intended that a new preamble should not be used in interpreting the Constitution. As we shall see, it is possible that a form of words in the preamble dealing with Aboriginal Australians may raise questions of interpretation that could conceivably provide a basis for legal decisions and subsequent legislation of permanent importance for all Australians. What is in mind therefore deserves scrutiny.

Considering the possibilities, and appreciating what is in the minds of those developing this movement, is helped by a recent article by constitutional lawyer Professor George Williams in the Sydney Morning Herald last September. The article begins by referring to the successful constitutional amendment in 1967, initiated by the then Coalition government, which removed an obsolete reference to Aboriginal people that qualified their citizenship. The amendment passed with a 90 per cent “Yes” vote. Although Professor Williams does not make the point, this vote indicated the overwhelming desire of Australians to be fair to Aboriginal people.

Professor Williams contrasts the success of the 1967 amendment with the Howard government’s failed attempt, at the time of the 1998 Constitutional Convention, to include in the Constitution a preamble that would “honour” and “recognise” Aborigines and Torres Strait Islanders. He attributes the Howard government’s preamble failure to neglecting to “consult broadly with the Aboriginal community” and urges Mr Abbott to frame “a well-thought-out strategy if he is to avoid repeating Howard’s defeat of 1999”. He suggests that Mr Abbott start “by listening to the community, and to Aboriginal people in particular, to find out how they want the Constitution altered”.

He then moves from the preamble question to recommend the deletion of those sections in the body of the Constitution (Section 25 and Section 51(xxvi)) that contain racial references but which are not “racist” in intention. This also raises important questions but they will not be pursued here. Professor Williams goes on to say: “This [Constitutional deletion] needs to be replaced by a new power to make beneficial laws for Aboriginal people” (emphasis added). This proposal will, however, concern us.

In what follows, therefore, the focus will be on two issues. They are, first, the legal implications of including a new preamble to the Constitution and, second, the significance of including in the preamble and the body of the Constitution words applying specifically to Aboriginal people.

Let us deal first with the preamble question.

What do preambles in legislation do, and what might be some possible implications of using a preamble to achieve particular ends?

Law academic Christopher Enright describes the nature and functions of preambles as follows:

Today preambles are rarely found in statutes, although in earlier times they were far more common, and often lengthy. Preambles normally state the background to, and reasons for, a statute. Recital of facts in a preamble is prima facie but not conclusive evidence of those facts (Dawson v The Commonwealth 1946). A reference in a preamble to a fact will make evidence of that fact relevant, and therefore, in the proper form, admissible (Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd 1939). In cases of ambiguity references may be made to the preamble to ascertain the purpose of the law (Bowtell v Goldsbrough Mort & Co 1906). As a practical matter, a preamble in older statutes may be a valuable source of historical information.

A preamble, then, is nowadays unusual in legislation, but if chosen it may carry implications that are more than merely symbolic or ornamental. Depending upon its verbal content, it may play, beyond the intentions of its framers, a significant role in the interpretation of constitutional law. It could therefore have far-reaching and unpredictable consequences—the more so in a document as fundamental and embracing as the national Constitution.

Shortly after the Constitutional Convention of 1998 and the subsequent failed referendum on establishing a republic, the former Chief Justice of the High Court of Australia, the late Sir Harry Gibbs, presented a paper to the Samuel Griffith Society in August 1999 titled “A Preamble: The Issues”. This paper was a critical reflection, in particular, on the idea of a new preamble to the Constitution and on the contention that such a preamble would not be used in interpreting the Constitution.

Sir Harry noted that the 1998 Convention resolved that the new preamble should have a more extensive operation and that its words should cover, amongst other things, “the beliefs and values which are accepted by the people in adopting the [amended] Constitution” and “the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders; Australia’s cultural diversity; respect for the unique land and environment; and a reference to ongoing constitutional change”.

Sir Harry goes on:

It was additionally resolved [by the Convention] that the following further matters should be considered for inclusion in the Preamble: affirmation of the equality of all people before the law; recognition of gender equality; and recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia’s indigenous peoples.

We are yet to know in detail what the present government and other proponents of a new preamble have in mind, whether it will include the sorts of sentiments described above and whether they will also incorporate Professor Williams’s hope that the body of the Constitution be empowered to make “beneficial laws” for Aboriginal people.

There is the further question of legally eliminating the possibility of the words of a new preamble being used to interpret the validity and effects of existing and future legislation. Even if the preamble were to say of itself that its words should have no legal effect, Sir Harry observes that “the protection which it is designed to afford may prove to be to some extent illusory”:

The Courts have held that a preamble may have wider effects than as an aid to interpretation. A reference in a preamble to a matter has been held to make evidence of that matter to be admissible. Recitals in a preamble are prima facie evidence of the facts recited. It would be arguable that these rules are not excluded by a provision that the Preamble has no force …

One can only conjecture, for example, what effect might have been given in legal proceedings to the presumption that Aboriginal peoples were the original occupiers and custodians of Australia if, as the Convention suggested, those words had been inserted in the Preamble, since those words import that the Aboriginal peoples had possession of the land in Australia and the power to direct what should be done with it.

He goes on to say that a preamble, “even if devoid of legal force, could significantly affect ministers and other executive officers in the exercise of their discretionary powers”. Sir Harry further argues, on the basis of the High Court’s finding in the case of Minister for Immigration and Ethnic Affairs v Teoh, that, for ministers and bureaucrats, this would

provide authority for holding that there would be a legitimate expectation that a decision maker would act in conformity with the statements in the preamble, whenever they were relevant to the decision to be made … The fact that the preamble had no legal force would not matter: to use some words from Teoh’s Case, the matter in the Preamble would exist as a matter of fact and could not be dismissed as a “merely platitudinous or ineffectual act”.

Further on, he remarks:

Apart from possible consequences of this kind, the existence of a Preamble could have political consequences. Reliance could be placed on the words of the Preamble by interested groups seeking, for example, to establish Aboriginal rights, or to prevent mining or development which it is claimed may damage the environment.

Sir Harry concludes: “For all these reasons it would, in my opinion, be inappropriate and unsafe to include in a Preamble to our Constitution a statement of beliefs, values and aspirations.” This may be an understatement. In the hands of activist judges the possibilities could be alarming indeed.

These learned remarks by an outstanding jurist, and the warnings in Sir Harry’s paper, point to dangers implicit in what may be soon offered by the parliament to the public as a moderate, generous and well-intentioned proposal to alter the Constitution in the service of Aboriginal “recognition” or other ends.

What is true of a preamble alteration may also be true, and perhaps more significantly so, of changes to the body of the Constitution if they state, or imply, changes expressly intended to serve specifically the interests of the Aboriginal people.

There is more to be said before identifying these possible dangers.

For generations following the early days of British settlement, in the framing of the Constitution, and more intensively over the last forty years or so, the impulse overwhelmingly of non-Aboriginal Australians has been to improve the often miserable and culturally ravaged life of many Aboriginal people. Any suggestion that the Constitution is racially biased and discriminatory is false. Wherever the Aboriginal people or the word race are mentioned in the Constitution the intention is beneficent and has been found to be so by the Courts.

The main aims of public policy—not always achieved and with much variation across the country—have been to enable and prepare Aboriginal people to live a full and satisfying non-traditional Aboriginal way of Australian life if that is their wish; or, alternatively, to enable them to continue to live a more or less traditional way of life if that is the choice; provided, as with all other Australians, that this did not entail criminality, violence, abuse or disorder affecting either themselves or others.

The pursuit of these aims, particularly in remote areas, has often been hampered by serious misconceptions, illusions and failures by both parties, and much still remains to be done and much to be repaired in the face of social problems and alcoholism. Nevertheless, faltering progress has been made in providing the circumstances and institutional facilities (such as education, employment, access to land and housing, and financial and welfare support) that can make life better. Underlying all this has been an implicit presumption that Aboriginal people and the rest of the country must share common citizenship under the rule of law—a presumption manifest in the Constitution and advanced by the overwhelming majority support for the 1967 constitutional amendment. What is now being proposed forces us to ask questions about the substance of this “common citizenship” and the legal composition of who constitutes the Australian people.

So where, then, lies the danger in the current proposal to alter the Constitution?

It lies in the threat it could pose, if implemented, to the common citizenship of Aboriginal and non-Aboriginal people, and all that that would imply for the future. This threat would be realised if any amendments effectively declared or implied in the words used that the Aboriginal people were indeed a separate people—either the only genuine Australians or a different kind of people from other Australians and deserving of special recognition and “beneficial laws”. The Aboriginal people and non-Aboriginal people would not then share a common, united citizenship under the Constitution.

This could expose Australia to the entrenchment, potentially forever, of a form of legal, social and economic preferment (and exclusion) applying to one identified group of citizens that will distinguish them from the remainder of unidentified citizens. That would set a very dangerous precedent. We would no longer have a Constitution whose terms assumed a common civic and legal status for all Australian citizens of any race, religion or former nationality. There would be two kinds of Australians acknowledged by the Constitution—one group racially or culturally identified and “recognised” (leaving aside the question of how, practically, such an identification can be rationally made) and the rest. What could be more divisive—or more “racist”? Moreover, the “Aboriginal people” as usually understood today, may not be Australia’s original inhabitants. There is substantial evidence suggesting that there may have been a succession of waves of incoming inhabitants to the continent over the last 50,000 years or so, some of whom could have displaced earlier inhabitants and then later have been displaced to some extent themselves.

Although the prospects of passing the referendum may look favourable at the moment, the proposal and its terms await public debate. That debate could well be extensive and heated, especially if awakened interests of many kinds seek to use the proposal as a vehicle for significant changes to the Constitution beyond a modest “recognition”. Ostensibly noble intentions could conceivably lead to confusion and separatism, and even lead, if realised, to a spate of bitter litigation rather than “reconciliation”. Instead of promoting amelioration and national cohesion we could have resentment and division.

These are real possibilities from an extended preamble to the Constitution and would be formally set in stone by inserting clauses and laws “beneficial to Aboriginal people” in the body of the Constitution. This would create, permanently, an unbridgeable cultural and social gap that mocks the whole idea of Australia as a liberal, democratic nation of one people, where differences of opinion, colour, beliefs, history, personal aspirations and the private life, count for nought; and where a common language and observance of the same system of laws asserting common obligations and freedoms are of the essence. There can be no legal preferment or exclusivity for any racial, ethnic, cultural or religious groupings that is consistent with such an ideal.

Even if the amendments were to be reduced to a bland, symbolic and seemingly innocuous statement of “recognition” in the preamble alone, dangers could follow—along with the disappointment and resentment of those seeking more substance. If such an innocuous referendum were to be lost, could this be seen by Aboriginal people as a “racist” rebuff and cause even greater resentment and a blow to reconciliation? In reality, of course, failure could indicate the continuing wish of the Australian people, perhaps including many Aboriginal people, to remain an undivided nation of one people.

For these reasons, there is little to be gained and only major offsetting dangers to be incurred, by the success of any referendum that in any way expresses a group preferment and separates that group of people under the Constitution from the rest of the people. The idea of a nation of one united people living under a Constitution blind to racial, ethnic, religious and cultural differences would be abandoned and the cohesion of Australian society undermined.

It would be better if the referendum proposal were abandoned before we go further down a road full of constitutional and legal potholes no matter what course is taken. The admirable goal of better things for Aboriginal people can be effectively pursued without more symbolism; and certainly without entrenching separation and divisiveness in the Constitution.

Rejection of the proposal for a referendum, or rejection of a referendum if held, should, however, mark the beginning of a necessary recasting of public policy and civic attitudes towards Aboriginal affairs more widely.

The fact that this constitutional proposal is being vigorously pursued by politicians, many Aboriginal and non-Aboriginal organisations, various groups with assorted agendas, and ordinary and well-intentioned citizens, points to the persistence and strength of the belief that there is an unfulfilled and vital duty, driven by guilt and shame, that obliges non-Aboriginal Australians to acknowledge and assuage the historic guilt of seizing the continent, dispossessing its occupants, imposing British law and undermining their culture. This history, it is said, justifies claims for restoration, compensation, confessions and gestures—such as the Apology and the present proposal for special recognition in the Constitution.

That history has been under active investigation now for many years, as if its findings, for good or ill, should determine the premises under which we should act today in Aboriginal matters. A reading of this literature and research shows that the record contains instances of events that are regrettable; but the record also contains much that is admirable and unexceptionable in the circumstances.

The temporal context to these things is vital to understanding and to deciding whether to draw a line under the past or to entrench endless apologising and compensating. The record shows that the First Fleet and the country’s first English governor began work in a spirit of decent concern and respect for the Aboriginal people they encountered and forbearance for the resistance they naturally offered. There was no “genocide” and that official attitude was continued in the main by governments right up to the present. This is not to deny that there were violent and sometimes deadly clashes between settlers and the local Aboriginal people. But the official response, where they came under notice, was to enforce the law and to punish the perpetrators if they were identifiable and culpable.

Yet nothing is more truly said than: “The past is a foreign country: they do things differently there”. In our country bad things happened. Yet a lot of “guilty” actions (on both sides) then were not seen as such, either by the perpetrators or by their victims. It was the way of the world at that time. And it is still the way in many parts of the world today. If the taking of land, colonisation, settlement, imperialism, invasions and warfare are invoked, it has happened to all peoples, nation or tribe, at some time in the distant past, or not so long ago. It is still happening today. It may have happened to prehistoric inhabitants of this country and it could happen to us.

As the black American author Thomas Sowell has put it in relation to his own country: “One of the things we take for granted today is that it is wrong to take other people’s land by force. Neither American Indians nor the European invaders believed that.”

It is possible that every citizen in this country was born to a people who long ago, or not so long ago, were invaded or settled by strangers who were stronger than they and who could not be repulsed, and with whom they had eventually to make an accommodation, or separate, or wage war. It is extraordinary, after 226 years of European settlement, large-scale immigration by scores of nationalities to this country, and 113 years of federation under a sound and liberal Constitution, that we should contemplate such a retrograde, dangerous and divisive step as what is now being proposed. Surely we should all be getting on with the business of forging a united nation and building a better life for all?

If we turn our gaze from the past and look to the future, it will be obvious from what has already been said that the overall perspective governing this essay regards Aboriginal Australians as fellow citizens in every respect, no less and no more deserving of fair governmental and civic services and treatment than any other group of Australians with, or without, special problems.

That the problems of many Aboriginal people are unique is not to be denied. Many are due to remote location and lack of services; many are due to traditional practices, attitudes and behaviours deriving from Aboriginal history and culture; many are due to lack of education and gainful employment because of wrong or failed governmental policies. Turning to the Constitution will not solve those problems; but determined action will, and will not be hampered by the Constitution as it stands. There is ample power for government to achieve a better life for the Aboriginal people without altering the Constitution. Using the Constitution for this purpose cannot be done without running an unacceptable risk that doing so would establish a virtually indelible preferencing of one group of Australians over the rest—with unpredictable and possibly dangerous consequences.

A crucial question for Aboriginal people to answer individually is whether they wish for integration with, or separation from, the national mainstream and ethos. Such integration can be achieved (and has been achieved by many) whilst retaining significant elements of the traditional culture and the modifications and innovations to art, dance and music, for example, that have been embraced by the country as a whole because that is what Australians do.

If we distinguish between “culture” and “a culture” we mean by the latter “the ways in which a given people live”—their daily habits, customs, religion, forms of occupation and amusement, kinship systems, and the like. On the other hand, in the English-speaking tradition and in the West, and thus in Australia, the notion of “culture” has another and different meaning. It stands not merely for the particular practices and habits of daily life, but also for the institutional character of a people concerned to embrace certain standards of excellence in the pursuit of intellectual, philosophical, moral, artistic, political, scientific and literary achievement. This entails an institutionalised capacity for setting critical and discriminatory criteria to be used in deciding whether or not to adopt and cultivate “the best that has been thought and said” (and achieved) in these departments of human life anywhere in the world. This is the true “multiculturalism” of a society open to what the world might have to offer. It is a tradition that needs to defend itself and the “universalism” it implies. It is not a multiculturalism that indiscriminately celebrates, elevates and sustains whatever cultures exist simply because they exist.

A democratic nation such as ours can tolerate a high degree of pluralism and freedom within a system of law that is strictly and equally applied to every citizen. This implies, nevertheless, that certain practices are unacceptable, but that others may fall within a definition of pluralism that accepts all sorts of non-conformist beliefs, customs, second languages and “eccentricities” that are harmless—or even beneficial—provided they do not disturb peace and good order or threaten or unnerve others, or jeopardise their safety and property. Since the rule of law and the equality of all before the law are not up for re-negotiation in such a nation, a Constitution elevating differences between those subject to the law is anathema. It must, therefore, conceive itself as, and make itself, one people. It is the reluctance of some to accept this that presently bedevils us.

Yet, it seems that things are changing; that many Aboriginal and non-Aboriginal people are searching for a new understanding that dispenses with resentment and separatism and rejects sentimentalism, opportunism and moral posturing on both sides. They are seeking to consummate a true “reconciliation” of Australia as one people bent upon a better life for all.

For example, take these words by Alison Anderson, an Aboriginal person speaking in 2012 in her capacity as the Northern Territory Minister for Indigenous Advancement:

I see people, not categories, divisions or races. I see people and the potential for all to work together to bring clarity and progress into the world we share. Our task as politicians is to represent the whole community, and that I pledge to do. This is a moment of hope, a hinge in time. It is a long delayed day of promise for all Territorians and for all Australians.

It is a remarkable speech that deserves to be widely read and quoted. The following passage is an example of its realism. After summarising a background of policy and human failure and the corruption of noble ideas, she says:

That move to acknowledge our sufferings and our disposition was a noble one. The laws to return land to us and encourage independent development were fine achievements that grew out of the best intentions. Yet all this produced the twin corruptions of welfarism and the belief that Aboriginal people ought to live forever in a Cultural Stone Age. It did not happen quickly; those corruptions crept up on us over time and became entrenched. They have proved almost impossible to change. Now we have the sickness and abuse, the ganga and the crowded gaols, the empty schools and the suicide. How did all this happen? For the usual reason: because we continued to judge our ideas by their noble intentions instead of their results. We did this for many years after those results proved the ideas had failed. They also became entrenched because government passed laws and set up agencies and funded them to create jobs. Those jobs were filled by people who build careers based on the idea that separate development was the way forward for indigenous people.

And, finally:

We indigenous people need to be more like other Australians. I do not mean we should abandon our beliefs or our language, but like dozens of other cultures in Australia, we must learn to combine our own identities with participation in the broader society that will not weaken us. It will make us stronger in who we are. To preserve the old ways, we must embrace the new ones.

This is the kind of thinking that should inform policy and law in Aboriginal matters in the future. Its emphasis on unity and its denunciation of anything that promotes separatism is clear, while acknowledging that cultural variety may be consistent with the notions of one people and one nation for all.

From another direction, Aboriginal public servant Kerryn Pholi (writing in Quadrant, December 2012) reinforces Alison Anderson’s observations as she writes about her job. Her opening theme is the tentativeness and uncertainty that infects the behaviour of her workmates towards her, born of political correctness, that sees Aborigines as awkward colleagues (and perhaps legally dangerous?), but likely not to be quite up to doing the jobs they have won—perhaps unfairly won. She puts it this way:

I had for some time been feeling uneasy about the deference given to my opinions, the leniency around my work standards and the indulgence of my behaviour that did not extend to my “non-Aboriginal” colleagues to anywhere near the same degree. As an Aboriginal employee, I was a valuable acquisition—one that demonstrated my employer’s commitment to “reconciliation” and to “closing the gap in Aboriginal disadvantage” …

I realised that there was nothing unique about the mechanisms or the unfortunate effects of Aboriginal race politics in Australia; this was an international problem, a human problem that arises whenever people become emotionally and politically invested in one “identity” as separate and distinct from the “identities” of those around them. In Australia, our substantial emotional and economic investment in maintaining a separate Aboriginal identity has created an Aboriginal industry, made up of institutions and agencies with “expertise” on the distinct needs and wants of Aboriginal people.

She goes on to analyse, in revealing and indignant detail, the effects and destructive consequences for both Aboriginal and non-Aboriginal people and sums up:

A system that responds to racism by implementing special entitlements and assistance for actual or potential Aboriginal victims of racism reflects an incredibly complacent, or perhaps defeatist, attitude to the problem it purports to address. Rather than rejecting racism as a backward belief that has no place in modern Australia, and promoting equal treatment and dignity for all and enforcing this whenever necessary, our governments create an alternative form of racism into which “vulnerable” Aboriginal people are shepherded for their own safety.

Much more from this heartfelt essay deserves extended quotation, but I will rest with just one more example that comports with the theme of rejecting separatism and advancing Australia, not as a nation of races and cultural compounds, but as a varied and pluralistic nation of one people, with equality under the law for all. Kerryn Pholi has this to say about herself:

I feel fortunate that I belong to a modern culture that encourages me to think for myself, speak for myself, to take an interest in ethical and effective public policy and to have concern for the welfare of those beyond my narrow kinship or tribe.

These two Aboriginal women do not say it directly, but I think they would be sympathetic to the view that the time has come to bring to an end the “age of guilt” that has poisoned relations between Aboriginal and non-Aboriginal Australians, and an end, also, to apologising and compensating. The time has come to substitute for the detritus of the past an era of renewed co-operation. Such an approach is encouraged by the clear indications from these two women and from those for whom they speak, of a powerful urge to get on with Alison Anderson’s call to abolish “categories, divisions or races”, and to establish a different future for relations between Aboriginal and non-Aboriginal in order “to bring clarity and progress into the world we share”.

This speaks of an ambition to secure the acknowledgement of Australians as “one people” living as equals under the same law in our common homeland and with an end to the age of guilt. It is an ambition that would be derailed by a constitutional amendment that moves in the opposite direction.