In a speech to the Garma Festival at Arnhem Land in August 2019, Noel Pearson lavished praise on a recent paper given by the former Chief Justice of the High Court of Australia, Murray Gleeson. Pearson called it “the last word on the legal integrity of the Voice and its seamless compatibility with the constitutional history of the Australian Commonwealth”. Pearson said the judge had demolished the conservative case put by the Institute of Public Affairs and journalist Andrew Bolt that “race has no place” in the Constitution. Pearson said:
This argument succeeds only if you ignore the truth that our claim is on the basis of our being indigenous to this country, not on the basis of race. Bolt and the IPA remain steadfastly obscurant on this.
However, it should be noted that although Gleeson’s paper favours such a reform he also acknowledges there was no longer any legal need to introduce constitutional change to implement the Voice. The Commonwealth Parliament has long had the power to set up such an advisory board. In fact, as things stand now, a proposal of this kind that did not involve constitutional change would not be controversial and any government would have little trouble getting support for such a Voice from a majority in both houses. Since 1967, when a referendum gave the Commonwealth the power to make laws specifically for Aboriginal people, successive governments have been able to establish advisory bodies of this kind without any further constitutional change. They include the Council of Aboriginal Affairs 1967–1973; the National Aboriginal Conference 1977–1985; the Aboriginal and Torres Strait Islander Commission 1990–2005; and the National Congress of Australia’s First Peoples 2010–recent.
As a result of the 1967 referendum, Gleeson said, Section 51(xxvi) of the Constitution allows the Commonwealth to make laws for “the people of any race for whom it is deemed necessary to make special laws”. This is true. Indeed, all the instrumentalities made by the Commonwealth since 1967, including the myriad of indigenous-only bureaucracies in welfare, health, housing, education and land rights, depend for their existence on the constitutional change made then.
Hence, Gleeson says Australia does not face any inherent legal problem with the concept of race. He says that, although history has often shown racism to be evil, “it does not follow that the term is unmentionable, or that any governmental action predicated upon race must be wrong. It has a firm footing in the Constitution.” Moreover, he says, being indigenous is not necessarily a racial matter:
In whatever country is under consideration, being Indigenous could be regarded as a matter of history, or geography, or ethnicity … If, as our leaders often say, we have among us a group of people who have a special place in our history, and we are satisfied they deserve a certain form of recognition on that account, it would be driving ideology to an extreme to decline them that recognition because they form what could be regarded, and is regarded by the Constitution itself, as a racial group.
In short, if Australia’s political leaders believe that Aborigines have “a special place in our history”, then Gleeson’s position is that there is nothing wrong, and nothing racist, about inserting that sentiment in the Constitution itself.
So why has Australia since 2011 gone through the long and expensive process involving no less than ten inquiries and seven reports on this issue? The reason is clear in the major writings of those behind this campaign. It is because the Aboriginal political class is now demanding that its members gain more political power and more political privilege not only because of their history and geography but specifically because of their race. The IPA and Andrew Bolt, plus a throng of Quadrant authors, have been quite right to point this out. Gleeson might not think this poses a legal problem for Australia but the history of racial politics throughout the world is dark and troubling, and the further any country goes down this path the more grievous are the consequences.
The seminal argument for the current Aboriginal demand for constitutional change and indigenous sovereignty comes from Henry Reynolds’s book Aboriginal Sovereignty: Three Nations, One Australia? (1996), which, its author openly acknowledges, advocates “ethnic nationalism”, a soft term for nationalism based on race. To Reynolds, this concept means that, under his proposed changes to the Constitution, Aboriginal legal rights and self-government would be based not only on their previous occupation of the continent but on the fact that Aborigines are an ethnically distinct people. Reynolds says:
Ethnic nationalism challenges the widespread belief that the state should be the sole repository of sovereignty and the individual citizen “the sole vessel for political rights”. It seeks to devolve sovereignty and to accord special rights to indigenous communities which occupy an intermediate place between the individual and the state.
Reynolds approves of the notion of an ethnic state, even though he recognises history has shown there are problems with it. He can say that again! From mid-nineteenth-century Europe onwards, it turned into one of the most destructive form of politics ever devised. It meant establishing a polity not on political principles like liberalism, socialism or democracy, but on the bloodlines of ethnicity and race. For those members of ethnic groups who lived outside the homeland, it meant uniting them by warfare. Otto von Bismarck waged the wars of German unification to enforce the idea that all German volkes must be affiliated to the German state. In Italy, Giuseppe Mazzini, the leader of the Italian Risorgimento tried the same, arguing all humanity should gain sovereign status within their own racial groups. In the twentieth century, Adolf Hitler took this argument to its logical conclusion by annexing Austria and the Sudetenland, by launching war against Poland and the USSR to gain lebensraum for those of volk ethnicity, and by exterminating the Jews of Europe.
The fundamental problem of ethnic nationalism was made clear in the historical debates of the 1960s over the connection between nationalism and the Second World War. The most illuminating contribution to this debate was Elie Kedourie’s book Nationalism. Kedourie distinguished between the racist nationalism of much of continental Europe and the civic nationalism of Britain and the United States.
Civic nationalism meant that Britain and its colonial offshoots owed their loyalties not to an organic whole based on race, language or physiognomy, but to political institutions and laws that evolved over centuries as their societies expanded and became more complex. In fact, the term Kedourie preferred to describe the national identities of the British-derived societies was “civic patriotism”, in contrast to the racial and ethnic nationalism that emerged on the Continent.
Civic patriotism not only meant loyalty to the home country’s laws and institutions but also an outward orientation to the wider world. It created open societies, curious about and often welcoming to others. Ethnic nationalism produced societies that looked inwards, obsessed with their own culture, and more concerned to exclude outsiders than to embrace them.
As a result, the open societies of British descent have long accepted outsiders of any ethnic background, as long as they abide by the civic rules, including those of orderly immigration. A person of any race, religion or ethnicity can become English, American or Australian. But you cannot become an Aryan or an Aborigine; you have to be born one. You can convert to Christianity, Judaism or Buddhism or many other religions, but you can’t convert to an Aboriginal clan or a Maori tribe; you must have the right ancestral pedigree. In the weird ideology of identity politics today, surgery and artificial hormones can supposedly turn a man into a woman, but nothing can turn a white man into an Aborigine.
For these reasons, civic nations like Australia have been proven by history to be by far the best protectors of minority groups. People of any race, ethnicity or religion who become citizens and swear allegiance to the nation deserve the protection of its laws.
In fact, this last point is so well-known today it is surprising that Reynolds does not recognise its implications for his own views. He is a long-standing critic of the early twentieth-century White Australia Policy, which he claims (quite wrongly in my view) was designed to exclude from Australia anyone of non-white racial background. In North of Capricorn (2003) he denounced Australia’s immigration policy at Federation as an obsession with blood, biology and race:
the messianic pursuit of racial purity and the futile and damaging crusade to create for all time a society free from what the zealots called the contaminating and degrading influence of inferior races. The discourse was biological rather than sociological. Any amount of alien blood was too much.
Hence, according to Reynolds, a white attempt to create a state based on white ethnicity is an offence against humanity, but a black state based on black ethnicity is perfectly acceptable. His case is both illogical and hypocritical.
The same can be said for the views of the members of the inquiry that revived this issue more recently, Julia Gillard’s Expert Panel on Recognising Aboriginal and Torres Strait Islanders in the Constitution, appointed in 2012 and dominated by familiar faces from the Aboriginal political class.
To persuade the majority of Australian people to support its recommendations, this panel adopted the tactic of racial intimidation. Its central argument is that the Constitution was founded as, and continues to be, a white racist document that must be changed, or else. If the proposal to change this is lost, the report says, “the consequences of failure would be damaging to the nation”. This is because the Constitution allegedly commits racial discrimination against the Aboriginal people, a fact that ignorant white Australian voters still don’t realise. The report says:
The Panel’s consultations revealed limited understanding among Australians generally of our constitutional history, especially in relation to the exclusion of Aboriginal and Torres Strait Islander people from full citizenship. During the consultation process, many people were surprised or embarrassed to learn that the Constitution still provides a head of power that permits the Commonwealth Parliament to make laws that discriminate on the basis of “race”. While Australians are justifiably proud of the modern nation whose foundation is the Constitution, they are increasingly aware of the blemish on our nationhood caused by two of its sections, section 25 and the “race power” in section 51(xxvi).
There is no sign here of Murray Gleeson’s point that the 1967 referendum introduced positive constitutional changes for Aboriginal people, giving them access to Commonwealth finances and indigenous bureaucracies in welfare, health, housing, education and land rights. Instead, once the expert panel’s report was made public, much of the media responded with censorious headlines, both at home (“Push to Erase Racist Laws”, Sydney Morning Herald) and abroad (“Racist Australian Constitution Should be Changed to Better Recognise Indigenous Peoples”, Daily Mail, London).
Two of the Panel’s Aboriginal members, Megan Davis and Marcia Langton, followed up their report with articles in the news media to promote their views. In an opinion piece for The Australian they disclosed the rhetorical question they wanted used in the proposed constitutional referendum:
Do you want to remove racist provisions from our Constitution?
If the public failed to approve, they wrote: “the loss would brand Australians to the world as racists, and self-consciously and deliberately so”. This is clearly ethnic blackmail: vote for us, or we will trash your country’s international reputation.
The claim that the Australian Constitution ever had, let alone continues to have, genuinely racist provisions is false. The panel’s report, and the academic and legal literature on which it is based, provide tendentious interpretations of several constitutional sections to make them appear to be something they are not, and were never intended to be. The Constitution’s powers to provide welfare, educational and health services to the Aborigines were always intended, by both the Harold Holt government that staged the referendum and the electors who voted Yes, to be benign attempts to overcome social disadvantage. The claim that Australia has a racist constitution with racist provisions is untrue and no voter in any referendum should believe it.
In Part Two of my contribution to Quadrant Online, I discuss further attempts at ethnic blackmail over democracy and the constitutional right to vote in Australia.
Keith Windschuttle is the editor of Quadrant and author of The Break-up of Australia, which can be ordered here
 Ivan Hannaford, Race: The History of an Idea in the West, Woodrow Wilson Center Press, Washington, 1996, pp 218–368
 Elie Kedourie, Nationalism, Hutchinson, London, 1960, 1966
 Keith Windschuttle, The White Australia Policy, Macleay Press, Sydney, 2004, Chapter Seven
 Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Foreword, p v
 Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples, Executive Summary, p xii
 The Australian, 21 January 2012