Sorry, Chris Kenny, You Couldn’t be More Wrong

In a recent Weekend Australian, Chris Kenny quoted me from a Quadrant Online article.  In doing so he seriously misrepresented my position, and he also demonstrated a lamentable lack of understanding of our Constitution – which he seems hell bent on changing in a significant and highly detrimental way.

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I must say that it pains me to be at odds with Chris Kenny, a journalist whom I admire more than most.

Three times, via the  Letters Editor, General Enquiries and Editor-in-Chief, I offered my response to The Australian, only to have my request totally ignored.  So, Chris Kenny will have to read it here.  Not that it differs much from my original piece. Kenny says

For some reason No advocates have been keen to single out my commentary, including Peter O’Brien in Quadrant, who ran with the headline ‘The Voice in Chris Kenny’s Head’ and opened by asking, ‘Would it be too fanciful to suggest some sort of selective woke virus has infected Chris Kenny’s brain?’ I am not familiar with O’Brien, who used some of my online and email responses to readers and viewers to construct some sort of dialogue between us. (He could have just declared himself and asked for an interview.)

Contrary to his claim, I did not ‘construct some sort of dialogue between us’.  I tried to commence a dialogue with Kenny via an email exchange — an exchange to which he initially responded and then declined to respond to further argument. The content of those emails is detailed in the Quadrant Online article to which Kenny refers. He continues

He took issue with my contention that the only mentions of Indigenous people in the Constitution had been to exclude them.

This is disingenuous.  What I took issue with was Kenny’s repetition of a claim, made by constitutional expert Dr Shireen Morris, that Aborigines were ‘explicitly excluded’ from the original Constitution.  That is to say, that they were not afforded the rights and protections inherent in the Constitution; that they were somehow ‘non-citizens’ and existed in a parallel system of governance, such as, dare I say it, under the Flora and Fauna Act.  If that were true it would indeed be a stain on the Constitution. But the claim is not true, as I shall show.

Kenny continues

This is just a matter of fact: they were excluded from being counted in our census under section 127 (repealed in the 1967 referendum); excluded under the race power in section 51 (xxvi), the exclusion removed in the 1967 referendum; and in section 25 people of any “race … disqualified from voting” are not counted in state populations, a redundant clause that was directed at the many Indigenous people who did not have voting rights at Federation.

Here is the basis of my criticism of Kenny.  In September 2022, in a debate on Sky News, Dr Morris claimed that the Constitution ‘explicitly excluded Aborigines’.  In using the word ‘explicitly’, she can only have been referring to the original Section 51(xxvi) or Section 127 as these are the only sections that explicitly referred to Aborigines.  Chris Kenny did not challenge that claim and has since repeated it.  On December 3, 2022, writing in The Australian, Kenny said

The push for an Indigenous voice is not based on racial characteristics or assumptions; rather, the nation’s original inhabitants need a voice because they were specifically excluded from the Constitution initially …

Section 51(xxvi) did not exclude Aborigines from the Commonwealth or the Constitution.  It merely excluded them from the class of people for whom the Commonwealth could make special laws, because that was the responsibility of the states. That is, they were excluded from an arguably discriminatory provision.  And Section 127, which was repealed in 1967, only constrained government from counting Aboriginal people in ‘reckoning the numbers of people of the Commonwealth or a State or other part of the Commonwealth’. It is generally accepted by constitutional experts that Section 127 did not originally relate to the census – although that was how it was subsequently interpreted – but to the allocation of seats in the Parliament or to certain financial provisions. 

As British subjects, resident in Australia at the time, Aborigines were subject to every other provision of the Constitution in the same way that were white people.  The fact that they were specifically excluded from Sections 51(xxvi) and 127 must necessarily mean they were included in all other provisions.  Kenny’s reference to Section 25 being ‘directed at the many Indigenous people who did not have voting rights at Federation’ is an implicit acknowledgement that some Aborigines did have the vote and they could hardly therefore be said to have been excluded. Section 25 was not directed at Aborigines who did not have the vote but at those state governments denying them that vote. 

The fact that, in 1962 – before the 1967 referendum – the Commonwealth legislated to extend the vote to any Aborigine who did not already have it, demonstrates clearly that Aborigines were not excluded from the Constitution before 1967. Kenny further claims

O’Brien argues the fact ‘Aborigines were specifically excluded from two provisions necessarily means they were included in all others’. Well, it was three, as I just outlined, and when the exclusion is to not count people as citizens of a state or a country, it is difficult to seriously argue this is evidence of inclusion – by this logic denying Indigenous Australians the vote was an act of recognition!

This is a grievous error. Aborigines in NSW, Victoria, South Australia and Tasmania could vote in colonial elections before 1901 and, by virtue of Section 41 of the Constitution, they could vote in Commonwealth elections.  Section 25 did not specifically mention Aborigines, as I correctly stated – it merely referred to people of any race (which could mean Chinese, Japanese and Malays).  And it did not deny them the right to vote in Commonwealth elections. It simply recognised the fact that the state governments had the right to deny them the vote at state level and, as Quick and Garran make clear in their Annotated Constitution of Australia, it was included as an inducement to recalcitrant States such as Queensland and Western Australia to extend the vote to their Aboriginal populations. The Constitution, in 1901, contained no provision that would prevent Parliament from giving disenfranchised Aborigines the vote.  No ‘explicit exclusion’ from voting rights. Admittedly, it did not guarantee them the vote.  But the same is true of then-disenfranchised women or anyone else, for that matter.  It left that issue up to Parliament.

It is important to recognise that the Constitution was not designed from the ground up to establish a perfect society.  It was a compromise between the six colonies, some of which were more progressive than others.  Without those compromises – such as Section 25 – federation would not have occurred.  If some Aboriginal people are marginalised today, it is not the fault of the Constitution, but that of governments and, to some extent, their own communities.

I have ‘been keen to single out’ Kenny because, as a self-proclaimed conservative, one would expect he might be more amenable to reasoned argument than proponents on the Left.  ‘Let’s have the debate’, he says repeatedly.  Debates hinge around facts on one hand, and inferences or actions to be drawn from them on the other.  But his refusal to acknowledge the facts, as detailed above, is indicative of either a lack of intellectual rigour or a wilful obtuseness.  It has nothing to do with debate.  When he says Aborigines ‘were specifically excluded from the Constitution initially’ he is just plain wrong.

Much of the support for this Voice is based on a perceived need to atone for the wrongs of the past.  Kenny himself makes this case.  However, it does not serve anyone’s interests if one of the justifications for a major constitutional amendment – a new chapter no less – is based on an egregiously false premise.

How many of Kenny’s other arguments in support of the Voice are similarly flawed?

AUTHOR’S NOTE: It has been suggested to me that I should have identified myself to Chris Kenny and sought his agreement before publishing the text of our exchange.  I accept that I erred in this matter and apologise unreservedly to Kenny for that lapse

To Order Peter O’Brien’s The Indigenous Voice to Parliament? The No Case, an invaluable primer explaining why the Voice must fail, click here.