Writing Racism into the Constitution

Anthony Albanese’s first act as Prime Minister was to significantly replace two of the three Australian flags in Parliament’s House media Blue Room and replace them with the Aboriginal Flag and Torres Strait Islander ensign. Significantly, the Aboriginal Flag was in the center, with the Australian flag off to one side. Mr Albanese then opened proceedings with the following commitment:

I begin by acknowledging the traditional owners of the land on we meet. I pay my respects to their elders past, present and emerging. And on behalf of the Australian Labor Party, I commit to the Uluru Statement from the Heart in full.

Significantly, denominational leaders in Australia such as Kanishka Raffel, the Anglican Archbishop in Sydney, and Peter Comensoli, the Roman Catholic Archbishop of Melbourne, have also written in glowing support of The Uluru Statement from the Heart (TUSH). Even Pope Francis has thrown his ecclesiastical weight behind it. I suspect they are thinking more with their hearts rather than heads as they rush to persuade fellow Australians of its value. What follows are twelve of the most pertinent reasons for rejecting it:

It does not define its function, powers and processes

Under the FAQ’s section on the TUSH website titled ‘Why a constitutionally enshrined Voice?’ the organization states

The Uluru Statement does not detail the structure of the Voice and how it will do its job… The details including the functions, powers and processes of the Voice, will be worked out between government and First Nations and put into legislation. 

This is significant for the legal structure of our democracy. What will be the function and power of TUSH? Not even the advocates and designers of the statement know. There are no discernable limits under the current proposal. How can the government accept a constitutionally enshrined proposal without knowing what it will actually involve? TUSH advocates—and the Labor government—must provide a clear analysis of the functions, powers and processes of the Voice before putting it into something as permanent as the Constitution.

Professor Megan Davis, from UNSW, argues in a webinar on the TUSH website that, unlike past advisory bodies, it will force the government to listen to the constitutionally enshrined body. Legally, it is unclear what exactly being ‘forced’ and ‘listened to’ will mean. Will whatever the organization wants amended or implemented be subject to obligatory enactment? Just a part of it, perhaps, or the whole? Can the government reject proposed legislation offered by the Voice, or will it act as a fourth body of the state? It is madness not to resolve these questions before implementing permanent constitutional change.

It will enshrine race into the Constitution

Leading Australian anthropologist Peter Sutton, in a 2013 debate, argued against the concept of a national treaty since he rightly believed it would lead to the constitutional enshrinement of race. Sutton also persuasively argued that making a treaty based on racial identity would exclude family communities of bi-racial dissent, and would divide people according to the color of their skin.

Godwin’s Law to one side, Sutton goes on to note that Nazi Germany based its abuse on Jewish minorities through a racialised Constitution in 1933. As Sutton states, it cannot be assumed that a treaty differentiating racial groups would not be abused in 100 years time. Similarly, Greg Sheridan has recently written in The Australian:

Morrison and Malcolm Turnbull before him both rejected the Uluru Statement from the Heart proposition that an Aboriginal voice to parliament should be established and enshrined in the Australian Constitution. They rejected the idea not because it couldn’t pass at a referendum. They rejected it in principle.

It will perpetuate the same failures that marked ATSIC 

TUSH draws a direct line with the Voice to parliament and the Aboriginal and Torres Strait Islander Commission (ATSIC). On the TUSH website, they argue:

The Uluru Statement calls for a Voice to Parliament to be enshrined in the Australian Constitution by way of an enabling provision. Previous First Nations’ representative bodies (such as the Aboriginal and Torres Strait Islander Commission — ATSIC) were set up administratively or by legislation. That meant they were easily abolished by successive governments depending on their priorities. Setting up and then abolishing representative bodies cuts across progress, damages working relationships and wastes talent that could be used to solve complex problems.

ATSIC was set up in March 1990 under the Hawke government and established a group of elected individuals to oversee and inform legislation relevant to Aboriginal and Torres Strait Islander peoples. The Uluru Statement assumes the abolition of ATSIC was damaging to ‘progress’ and ‘relationships’. This was not the case or anything like it. ATSIC was abolished because of embezzlement, corruption, obstruction of police and, most infamous of all, rape charges against the ATSIC Chairman Geoff Clark. Additionally, a government review of the program, ‘In the Hands of the Regions’, found ATSIC was detached from local communities and failing to implement their betterment.

Because of these ongoing scandals and misallocated funds, the proposal to end ATSIC received bi-partisan support from the Labor and Liberal parties. When John Howard announced the agency’s termination on April 15, 2004, he captured the essence in a few words:

The experiment in elected representation for Indigenous people has been a failure.

TUSH goes one step further. Not only will it be apt to repeat ATSIC’s mistakes by being detached from local communities, it will make these changes constitutionally enshrined and difficult, if not impossible, to abolish. Should Albanese’s referendum succeed, TUSH will become permanent, as will corruption, embezzlement and legal malpractice.

It will dissolve the separation of Church and State

While this point may not seem immediately pertinent, one of the most significant problems with TUSH is its promotion of indigenious spirituality in such a way as to confuse the traditional delineation between Church and State. In arguing that “Aboriginal and Torres Strait Islander tribes were the first sovereign nations” the statement defines ‘sovereignty’ in an explicitly religious way. This sovereignty is

…a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, or sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

TUSH disingenuously states that sovereignty is a “spiritual notion”. This is because Aboriginal spirituality views indigenious peoples as eternally connected to the Land™ and also Peoples™. The statement also avoids the complexity of Aboriginal spirituality and views land ownership through a eurocentric lens, as leading anthropologist A. P. Elkin notes

It is true, at least from our point of view, that members of such a local group owned their “country”. But that is only one aspect of the situation. A more significant aspect is that they belonged to their “country” – that it owned them; it knew them and gave them sustenance and life. Their spirits had pre-existed in 
it – in the Dreaming. Therefore, no other “country”, never mind how fertile, could
 be their country nor mean the same.

All of this is in stark contrast — indeed, contradiction — to what is said at the end of the paragraph relating to the “sovereignty of the Crown”. These are two distinct claims to sovereignty with different views on spiritual ownership, blurring the line between the church and state.

It will pervert our view of race relations.

TUSH presents a cultural Marxist paradigm of race based upon an imbalance of ‘power’ and the ‘struggle’ needed to redress it. Indeed, Geoff McDonald persuasively argues that there has been a strong ideological connection between communists in Australia and the push for Aboriginal land rights. For example, note the Marxist language that TUSH itself uses and highlights:

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. (emphasis original)

When race relations are constrained and distorted by a paradigm of power, the disadvantaged race cannot achieve justice until the balance of power is equalized, whether or not the ‘payment’ has been made. Ardent TUSH advocate Professor Megan Davis, a proponent of intersectionality, argues on the statement’s Facebook page that the political elite cannot consign the First Nations people to another decade of inaction without addressing power structures.

By placing the blame on an abstract “political elite”, TUSH erases personal responsibility.

It will diminish the moral agency of Aboriginal people

Following on from the previous point, TUSH seeks to project all current social problems that exist within indigenious communities on their historical treatment by Europeans. This means Aboriginal people are not responsible for their actions but impotent victims of previous injustices. As the statement says

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers.

This argument infantilizes people to such an extent that they are relieved of being responsible for themselves and their actions. Decades of anthropological research show socialization, cultural behaviors and custodial relationships have had a greater impact on Indigenous ‘disadvantage’ than dispossession. For example, a reduction in serious health outcomes is not the result of a restricted voice to parliament but, rather, the lack of practical behaviors that could be implemented to close the health gap

These behaviors include absolutely basic things like domestic sanitation and personal hygiene, housing density, diet, the care of children and the elderly, gender relationships, alcohol and drug use, conflict resolution, the social acceptability of violence, cultural norms to do with expression of the emotions, the relative value placed on physical wellbeing, attitudes to learning new information, and attitudes to making changes in health-related behavior.

Blaming history and “structural racism” for high youth detention rates, community homicides and increasing levels of incarceration makes the individual blameless in committing crimes.

It will result in racial division rather than produce reconciliation.

TUSH repeatedly invokes the Aboriginal concept of makarrata, which is based more upon a notion of what Peter Sutton in his book, The Politics of Suffering refers to as “ritualized revenge” when compared to European notions of restorative, or even retributive justice. As the statement itself says:

Makarrata is the culmination of our agenda: the coming together after a struggle.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations.

The makarrata concept, though, is more far reaching than TUSH would lead the uninitiated reader to believe. According to Luke Pearson, writing for the ABC:

Makarrata is much more than just a synonym for treaty, though. It is a complex Yolngu word describing a process of conflict resolution, peacemaking and justice…

Makarrata literally means ‘a spear penetrating’, usually the thigh, of a person that has done wrong… so that they cannot hunt anymore, that they cannot walk properly, that they cannot run properly; to maim them, to settle them down, to calm them — that’s Makarrata.

Ken Maddock, a specialist in the field of Aboriginal customary law wrote back in 2001:

It would be too strong to say that Aboriginal customary law is getting a bad reputation even among those who have been seen as its natural defenders. But its real or imagined drawbacks are being exposed in a way which is new at the very time that demands are being made for its recognition as a component of a treaty, as a technique of ‘reconciliation’ or as a remedy for the ills of Aboriginal society. Unless some hard thinking is done about what customary law is and what its recognition would entail, any political initiative in its favor may end in tears and disillusion.

It does not offer any objective solutions

TUSH creates a false correlation with the desired outcome of reconciliation and the proposed solution of a Voice to Parliament. The statement does this by employing vague terminology such as ‘substantive’ and ‘structural reform’, which assumes that Aboriginal people must be liberated from systemically racist constraints. But what does that mean and how will such “reform” take place? The authors of the statement do not go into any detail.

The statement also claims to engage in ‘truth-telling’. Behind this particular truism is a loaded assumption that the political and historical viewpoint of the organization alone establishes a monopoly on the ‘truth’. Similarly, statements like seeking ‘fair and truthful relationships’ supposes race relationships are somehow not currently fair and truthful, furthering the cause of racial division. By conflating the idea with an identity group, the terminology ‘from the heart’ creates a divide between a nation that is striving to be reconciled. 

It will undermine the three existing arms of government.

The current Constitution of Australia involves three distinct but complementary limbs of government: the legislative (Parliament), the judiciary (courts) and the executive (the Monarch, through her representative the Governor-General). However, TUSH seeks to introduce a fourth arm into this mix of an Indigenious Voice. As the statement says: 

With substantive constitutional change and structural reform.

While this might seem noble, it is not clear how this fourth component will work in conjunction with the existing three. What is more, it’s superfluous since the government already has the power to create any number of advisory bodies as deemed necessary. It is also making a profound statement about our system of government: Aboriginal people do not already have a voice as citizens and legal voters. In fact, there have been several major Royal commissions into indigenous issues from Aboriginal Deaths in Custody: The Royal Commission and its Records, 1987–1991; Indigenous Deaths in Custody 1989-1996;Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families; Healing: A Legacy of Generations (Report on the Stolen Generation Inquiry, 2000); Unfinished Business: Indigenous Stolen Wages (Report of the Inquiry into Stolen Wages, 2006); Doing Time – Time For Doing: Indigenous youth in the criminal justice system, and Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133, 2018)

Additionally, under the legislative branch, the government has a minister from Aboriginal Australians, currently Linda Burney. The truth is, Aboriginal Australians are equally represented in our democracy, if not more represented than the average multicultural Australian in light of the number of House and Senate members claiming indigenous heritage.

It will re-frame our understanding of history

TUSH claims to “seek … truth-telling about our history.” But what is the ‘truth’ of history that TUSH argues is being suppressed? The TUSH website gives away its progressive ideological agenda when it states:

Australia must acknowledge its history, its true history. Not Captain Cook. What happened all across Australia: the massacres and the wars. If that were taught in schools, we might have one nation, where we are all together.

This statement is crazy: to what degree is Captain Cook not a part of Australia’s past? The TUSH Facebook page also uses the hashtag #HistoryIsCalling for a revisionist attempt to rewrite Australian history as a struggle between racial groups.

If this racialised view of history is ‘taught in schools’ without a balanced perspective of British settlement, it is hard to imagine a nation which can truly ‘come together’ under TUSH’s one-sided historical ‘truth’.

The TUSH website also claims:

The Tasmanian Genocide and the Black War waged by the colonists reveals the truth about this evil time. We acknowledge the resistance of the remaining First Nations people in Tasmania who survived the onslaught.

The statement assumes this is the only ‘true’ interpretation of history, ignoring three key facts about Tasmanian history: (1) there was no mass extermination; there are only around 118 recorded deaths of Aboriginal people from 1803-1847, which is lower than those of the white settlers killed. (2) The Tasmanian government had an active policy of goodwill towards the Indigenous population. (3) The decline in the Aboriginal population is mainly attributable to European diseases, treatment of women and inter-tribal violence. All of which is to say, Australian history is much more complex than a one sided political viewpoint that paints settlers as malicious men and women who wanted to disposses, murder and pillage.

It will nationalise an issue that should remain local

A national treaty does not address the local issues of Aboriginal communities. In fact, it would not make sense to have a national treaty for an identity group that is not ‘one’ nation.  Peter Sutton makes several key arguments for regional treaties over constitutional recognition:

♦ Australia already has over 800 regional treaties under Native Title.

♦ The idea that other countries like New Zealand and Canada have treaties with every indigenous person is not true. They have specific treaties with individual tribes, just like we have here in Australia.

♦ Some states, such as South Australia, are made up of as much as 39 per cent Native Title land. The Northern Territory is not far behind.

♦ Each of these has been planned in accordance with regional groups and suited to the needs of the particular community.

♦ The more land granted to each Native Title treaty in each state does not make a clear difference in social outcomes on a national level.

♦ There is no standard of post-colonial treaties because there is no single national treaty in the world that recognizes every native group in every part of a country.

♦ The crimes of the past cannot be solved by a national treaty, and the disadvantages of the past and present are not changed by a national treaty.

It will not resolve the real problems indigenious peoples face

By far the most significant failing of TUSH is its inability to make any real difference to the lives of Aboriginal peoples. As Keith Windshuttle rightly argues in Quadrant:

There is no credible empirical evidence that mention­ing Aborigi­nes in the Constitu­tion would improve their health. The claim is spec­ula­tion by a lobby group of psy­chiatrists, who claim it would improve Abo­riginal self-esteem. The gesture would be largely irrelevant to the 80 percent of Aboriginal people who are now well inte­grated into mainstream Australia, mostly in the suburbs of the major cities and larger regional centers. And it would go com­pletely unnoticed in the emergency departments of hospitals in central and northern Australia where, because of the failed policy of isolating indigenous people in remote communities, Abo­riginal women and child victims of Aboriginal violence and sexual abuse are grossly over-represented.

Indeed, some academics such as Germaine Greer have gone as far to explain the high rates of domestic violence from Aboriginal men as repressed rage against the disempowerment by white people, taken out on their wives and children. This type of victimhood blaming requires the minority group to remain victims. A murdered women is not ‘disadvantaged’, she has lost her life. As the eminent epidemiologist Stephen Kunitz put it

To suggest that pre-contact Indigenous life was anything but Edenic and that traditional modes of socialization and social control may contribute to the contemporary problem of violence is to risk being accused of blaming the victims and excusing their oppressors.

The Uluru Statement from the Heart will not unite Australians, only divide us. It will not address the many real needs and problems that indigenious peoples face on a day-to-day basis, and as such it should be firmly rejected as an attempt to undermine decision-making and due process in a Western democracy — one that already affords Aboriginal political representation and has done so for decades.