What Constitutional Recognition Would Mean

The Aboriginal academic Anthony Dillon says: “When discussing Aboriginal matters there seems to be no end to where offence can be taken and accusations of racism made.” That being so, it might be necessary for me to clarify that this article is not about opposing my fellow Australians of Aboriginal heritage from embracing, practising or celebrating their culture, so long as it does not violate individual rights and is within the confines of the rule of law. 

Instead this article is about the hidden agenda of the country’s ruling elites and their notorious contempt for the average Australian citizen. The political establishment and cultural elite think Australians are ignorant, racist bigots, while they think of themselves as a superior enlightened caste.

These privileged individuals not only take delight in falsely accusing other Australians of being inherently racist, but also the Australian Constitution of being a “racist document” which discriminates against indigenous people. They manifest a desire to remove allegedly “racist” provisions in the Constitution, and to add a new preamble that recognises the “first inhabitants” of Australia and their special rights as the “traditional custodians of the land”.

This essay appears in June’s Quadrant.
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Contrary to such claims, the Australian Constitution is simply a federal document which is colour-blind and does not mention the history of any ethnic group at all. The Constitution is basically the product of a compact between six former colonies to form a federation. Its primary function is not to describe history but to distribute various powers between the two tiers of government: the Commonwealth and the states. It is a practical document designed to establish a federal system of government, not a synopsis of Australian history.

One of the great virtues of our Constitution is its equal treatment of all citizens. It is a federal document for all Australians regardless of race, culture or origin. It is improper to use such a document to promote one group over the rest of the population.

However, advocates of constitutional recognition claim that it would go a long way to closing the gap between indigenous and non-indigenous Australians. The evidence suggests otherwise. According to the Productivity Commission, Australian governments have spent more than double per person on services for Aboriginal citizens than on other citizens. The ratio of indigenous to non-indigenous expenditure per head of population is 3:1 in school education, 5:1 in public and community health services, and 5:1 in housing.

Nonetheless, section 25 of the Australian Constitution is often interpreted as contemplating a denial of the franchise on racial grounds. This section reads:

For the purposes of the last section, 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.

The reason that this section was included is because, in the 1890s, Queensland and Western Australia practised racial discrimination by not allowing people of exclusive Aboriginal ethnicity to vote in state elections. The framers thought this was wrong and wanted to bring those states into line with all the others, where Aborigines already had the franchise. Even before Federation, writes Keith Windschuttle, “the great majority of Aborigines had the same political rights as other Australians, including the right to vote, which the Constitution guaranteed in Section 41”.

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Indeed, most Aborigines had full citizenship in 1901 and, contrary to false accusations of racism, section 25 was designed to penalise the states that discriminated against Aborigines by reducing those states’ representation in federal parliament. Rather than denying indigenous people the franchise, the founders actually supported giving Aborigines voting rights from the very outset.

Another provision in the Constitution that recognition activists identify as “racially offensive” is section 51 (xxvi). This reads in full:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi.) The people of any race, for whom it is deemed necessary to make special laws.

However, not once since Federation has this provision lent support to unfair discrimination on grounds of race. To the contrary, in Kruger v Commonwealth (1997) Justice Dawson stated clearly that the powers given under this section “were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally”.

Of course, repealing section 51(xxvi) would have considerable implications on Australia’s federalism. It would leave this power wholly with the Australian states. As noted by the constitutional law academic Professor James Allan, “any s 51(xxvi) change that was aimed at a ‘status quo but with better symbolism’ outcome would need a repeal plus a replacement”.

Above all, the repeal of section 51 (xxvi) would prevent the federal government, or Commonwealth, from creating sensible policies that could attend to the special needs of indigenous people. For example, the Howard government’s intervention in the Northern Territory in 2007 was intended to rescue children from horrible neglect and sexual abuse. To undertake this policy the federal government had to exempt itself from the applications of the Racial Discrimination Act 1975, a manoeuvre that was possible because of the existence of section 51(xxvi).

The Constitution treats everyone equally, no matter when they or their ancestors arrived here. So why is it necessary to amend our Constitution when it is clearly not a racist document? Why is it claimed to be necessary to amend the Constitution when every jurisdiction in this country has already legislated for racial non-discrimination?

Arguably, a successful referendum on the matter would not unite us but divide us along lines of race and ancestry. Be that as it may, on October 6, 1999, Australians were required to make two important decisions. First, to become a republic, and second, to add a preamble to the Constitution. The proposed preamble included a recognition “honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands, and for their ancient and continuing cultures which enrich the life of our country”.

Only 39 per cent of Australians voted “yes” for the new preamble. This was certainly not what the ruling classes intended.  To “fix” this problem the previous Rudd and Gillard governments spent millions of dollars in an “education” campaign to convince the public of the supposed benefits of recognition. In order to gather popular support, deeply emotional language was applied, to make Australians believe they had no option but to support such a recognition. This is quite clear in the message conveyed in the Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel, in September 2014, on page 11:

The recognition of our first peoples in the Constitution carries with it a moral imperative. The continued journey toward reconciliation relies on the restorative power of this referendum. A failed referendum cannot be contemplated. Indeed, the risk of anything but a resounding national “yes” vote is difficult to comprehend.

The renewed push for recognition serves a highly educated, mostly urban elitist voice with titles such as “professor” and “doctor”, demanding far-reaching changes for “the Aboriginal people”. The great hypocrisy in all of this is that the very paternalism of the past that the present establishment so self-righteously decry, they now wish to impose upon “the least fortunate, least educated and most isolated”. Sadly, says Dallas Scott, an Aboriginal writer, “this is the enduring legacy of Aboriginal affairs in Australia”. Scott is especially critical of people who identify as Aboriginal but who, in his view, “don’t have any idea about what it’s like to be black”.  As he points out:   

Those given titles such as “elder”, “spokesperson”, “tribal leader” (or some other colourful variations) are those not elected by the people they claim to represent, but overwhelmingly, are self-appointed to such a role. In a society where citizens have been sent to die for the chance to bring democracy to another country, some turn a blind eye to the undemocratic state of native organisations.

He is talking about individuals with no mandate to make decisions for others. These are decisions that affect people for whom “Aboriginal leaders” and their white enablers have no legitimacy to speak. Such individuals embrace the notion of “Aboriginal culture” but conveniently shy away from speaking about dysfunctional traditions that still exist and should not, such as the practice of “humbugging” that has been allowed not only to continue, but to proliferate. Scott concludes with a passionate appeal to every Australian citizen of good will:

Australians have happily swallowed the lie that Aborigines are one big, multi-coloured family who stick together … Those without a voice trust the rest who have one to speak up for them. They are not the ones lecturing on recognition from a function centre, but the people who are often functionally illiterate and unemployed, thousands of kilometres away from where people are listening and deciding what is important for them. I believe that these people, overwhelmingly, call for better housing, protection from violence and corruption, healthcare, jobs, education and the dignity that cannot be legislated into being …

As a native Australian, it would be nice to have a constitution that makes mention of our occupation of this great country for tens of thousands of years. The reality, however, is that it will not change nor improve … life expectancy or literacy. It will not make a dent in rates of alcohol abuse, domestic violence or improve health services for the most needy. It will not assure justice or provide protection from corruption. It will not provide the catalyst to change incarceration rates, or over-representation in prison populations. These are legacies that I am ashamed of leaving to my children, and others of their generation, as a native of this country—not our omission in the Constitution.

Constitutional recognition is particularly problematic because it offers the potential to create different rules for people with different ancestry. Such discrimination might benefit a few individuals but it “keeps many Aboriginal people from reaching their full potential”. An example of this is found in the practice of placing children in need of care with “culturally appropriate” carers. “This practice has sometimes ended in tragedy,” explains Anthony Dillon, a university lecturer who identifies himself as a “part-Aboriginal Australian”. Because of such legal discriminations, Dillon comments:

Some children have suffered, all in the name of “culture”. A colour-blind culture or way of life, characterised by love, is a far more important consideration than a culture that is assumed to be Aboriginal simply because the adult potential carers themselves have some Aboriginal ancestry.

Constitutional recognition could also tempt certain individuals to further “play the race card”, leading to the aggravation, not the alleviation, of differences between Aborigines and other Australians. Rather than generating authentic reconciliation, the recognition of a separate group offers the potential to poison cross-cultural relationships and so to “drive us further apart than we have been for generations”. After all, what might it be like co-parenting a child when one parent becomes more legitimate than the other in the eyes of the law simply because of his or her culture or skin colour?

What about the suggestion of adding a new preamble to the Constitution, one that simply honours Australian Aborigines as the nation’s first people? This might appear to be a good idea, were it not for the fact that the insertion of such a provision is to misconceive the document’s purpose in establishing the Australian Federation. If a new preamble adding the ethnic-cultural element were created, not only is it doubtful that it could serve any useful purpose; it would be incompatible with the inherent subject matter of the Constitution as a set of rules for the establishment of a federal system of government.

Aboriginal culture already is well recognised in Australian law. There are numerous laws, at federal and state levels, specifically dealing with Aboriginal matters, such as native title and heritage. There is also legislation to ensure that Aboriginal culture is properly taken into consideration. Such recognition, however, has engendered a number of unintended difficulties where culture is defined, with the acceptance of some behaviour as “cultural” which otherwise would not be tolerated.

When discussing recognition there is the problem of deciding exactly what might be defined as Aboriginal “culture”. Is it living off the land, undergoing tribal initiations, spearing offenders in the leg, or simply just a feeling? There is no doubt that Aboriginal culture includes a number of admirable aspects but it also includes some less than attractive beliefs and practices. For example, part of Aboriginal culture rests on “demand sharing” or “humbugging”, which means that “whatever one earns others have a right to”. Do Australians want to constitutionally recognise customary norms that flow from this practice? And what about the following initiation rite to manhood practised by the Arrernte tribe of Central Australia:

A boy becomes a man by having an upper central incisor pounded out of his head with a rock, without anaesthetic, without permission to express pain or terror, by having his foreskin cut off in little pieces with a stone knife and seeing it eaten by certain of his male relatives, and as a climax of agony, by having his penis slit through the urethra from the scrotum to the meatus, like a hot dog.

Sexual intercourse becomes difficult after these “cultural” procedures. The penis is so disfigured that the organ of just-pubescent girls has also to be “modified” in order to accommodate it. As explained by a commentator describing the Arrernte:

In order to overcome the difficulty the females are subjected to mutilation of a frightful character, with a view to the permanent enlargement of the parts which are operated upon. The incisions internal and external are made with sharp stones or stone knives, and the operators are always the old men of the tribes. The exact details of the procedure are so abominable that it would be impossible to adequately describe them in language fit for the general reader. The performance of these mutilations inflicts permanent injury upon the victims. Some of them do not survive the ordeal.

Constitutional recognition may provide an unintended incentive to the legitimisation of such heinous practices. Over the last four decades powerful members of the legal profession have expressed a desire to recognise every single aspect of Aboriginal cultural practice, including payback and tribal punishment. For example, the Australian Law Reform Commission’s report on the “Recognition of Aboriginal Customary Laws” in 1986 alleged that there was a widespread “support for the recognition of such customary practices, both in the Aboriginal communities, and amongst some in the legal profession”. The 2012 report of the Expert Panel on “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” regarded support for the recognition of customary law in the Constitution as “one vital component” that includes “respecting the constituting cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples”.

However, such recognition of “cultural rights” could allow punishments for criminal acts to be lessened for some individuals. It could also engender inequality in administrative matters concerning benefits, grants and other special provisions, and in civil cases concerning “offended” plaintiffs.

In The Break-Up of Australia, his book addressing the hidden agenda behind recognition, Keith Windschuttle explains why Australians have not been told the truth about such a proposal to change our Constitution:

A lot of people today want to re-write the Australian Constitution. It is not only the Aboriginal academic and political establishment who want parts of it redrafted to suit their own political agenda. The real aim of the hard core of today’s political class and cultural elite is not social amelioration or progress, even if they do regard themselves as “progressives”. It is to gain a once-in-a-lifetime opportunity to change the Constitution to fulfil their own political ambitions.

Their ambitions are not centred on gaining more liberal reforms or making Australia more democratic. In fact, in order to fulfil their political agendas, most constitutional critics today regard democracy not as an objective they must pursue but an obstacle they must overcome. For them, it is democracy that is the problem because it gives the majority of ordinary Australians the last word in deciding who governs. In the eyes of those who now dominate our cultural institutions and much of our political leadership, most ordinary Australians are uneducated, uncouth, racist rednecks, and a Constitution that gives people like them such power is unbearably frustrating.My interactions with “today’s political class and cultural elite” testify to the veracity of the above statement. This is precisely what the country’s ruling elites think of the Australian people.

There must be no special treatment of individuals or groups in the Australian Constitution. As stated by Ian Callinan, a former High Court Justice:

Any constitutional provision which might seek to justify a different law for peoples of different ethnicity on grounds of that ethnicity should be resisted. This must be so for reasons of fairness and social cohesion, as well as clarity of application.

Australians should not be bullied into supporting “group rights” that flow to selected people on the basis of culture, origin or ethnicity. “We got here first” is a much poorer concept than the great principle of Western constitutionalism, “We are all created equal and endowed by the Creator with certain inalienable rights”.

If the price of liberty is indeed eternal vigilance, then it is necessary for Australians to understand the hidden agenda of privileged elements in the public sector, particularly the political establishment and academic elite. Such individuals have a vested interest in dividing our great nation into lines of culture, origin and ethnicity so as to foment a more divisive society that ultimately facilitates the further expansion of their power and control over the population at large and the Australian Aborigines in particular.

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus