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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.[1]
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.[2] 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[3]) 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”.[4] 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).[5]
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”.[6] 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
[1] Ivan Hannaford, Race: The History of an Idea in the West, Woodrow Wilson Center Press, Washington, 1996, pp 218–368
[2] Elie Kedourie, Nationalism, Hutchinson, London, 1960, 1966
[3] Keith Windschuttle, The White Australia Policy, Macleay Press, Sydney, 2004, Chapter Seven
[4] Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Foreword, p v
[5] Expert Panel, Recognising Aboriginal and Torres Strait Islander Peoples, Executive Summary, p xii
[6] The Australian, 21 January 2012
“Do you want to remove racist provisions from our Constitution?”
We were under the impression in 1967 that we were removing them. By removing the Aboriginal exclusion from Sec 51(xxvi) we made the provision apply to any race therefore the clause was no longer racist although a legislation under it could be.
Question, have you stopped beating your wife?
‘Do you want to remove racist provisions from our Constitution?’
The cynicism exhibited in the formulation of the proposed referendum question is appalling.
The tragedy is it would probably succeed..
The 1967 referendum sought to energise the good will of Australians to improve the lot of Aboriginal Australians; the proposed referendum question seeks NOT to weaponise good will, but an assumed guilt.
“nothing can turn a white man into an Aborigine.”
Except for Bruce Pascoe.
Therein lies the rub. While the gist of Gleeson’s argument boils down to racial distinction, any attempt to instil the Voice as an institution would of necessity require a specific definition of the race of an individual. While modern techniques in DNA could satisfy some such requirement, the whole thing is a recipe for disaster.
The malicious proposal by Davis and Langton notwithstanding, a question in a referendum to alter the Constitution cannot be framed in such a manner.
The question can only be framed as “Do you approve of the proposed alteration to the Constitution?”, alongside the actual wording of the proposed alteration.
Of course, while the question in the referendum must be phrased in such neutral terms, there is nothing (except political decency) to stop advocates promoting the change, and loading questions in opinion polls, in the sort of terms proposed by Davis and Langton
Quite right Keith. I have no fundamental objection to the Parliament establishing an indigenous advisory body and calling it a ‘Voice’, if they want to.
There is no way I will support enshrining in the Constitution special privileges for a group of Australians defined by ancestry. No way. No!
It is wrong on fundamental principles and it is a political delusion to think it could be successful at a referendum.
Australian is Australian!
Whilst thoroughly being opposed to the ‘Voice’, it is absolutely wrong to suggest Australia was not an ethnic or race based nation. Australian referred to white people born in Australia, overwhelmingly with Anglo-Celtic ancestry. Chinese people born in Australia used this word for white people. Non-whites and non-Anglo-Celtic ancestries weren’t commonly considered Australian.
It is different and better now but this is a fact.
Yes indeed, decolonize the mind- bring to a complete halt left wing progressive Aboriginal privilege and discrimination.
The Orwellian masterpiece of hand in hand Marxism at the Aboriginal piggery- reconfigured as the sty of the eye!
Where are the Coalition politicians who are going to oppose this appalling proposal?
A vote for ‘civic nationalism’ sounds pretty good to me.
Founded on a civic patriotism. We are all equal.
No need at all for indgenous categories nor any ethnic ones.
Current legislative capabilities can make any necessary legislation without, after 1967, going to the Constitution. That eschewed racial provisions and it should be kept that way.
“It is wrong on fundamental principles and it is a political delusion to think it could be successful at a referendum.”
One can only hope this writer is correct about its lack of success. So many lefties shouting about ‘racism’ would bring out the bleeding hearts for another trip down fantasy lane towards unintended consequences.
BLM movement anyone? How they turned out in droves for that!
Today Bolt writes about Plibersek basing decisions on spurious science by race hustler, which struck me as trial runs for the sort of constitutionally enshrined interference and anti science in the Voice.
“Do you want to remove racist provisions from our Constitution?”
Surely the answer to this question is ‘yes”. The removal of sections 25 and 51(xxvi) would mean that government spending would have to be on the basis of need, rather than race.
As the proposed question only mentions removal, there could be no mandate for The Voice, as this would require addition to the Constitution, not subtraction.
I strongly suspect that the squealing about the “racism” of section 51 is a result of the Intervention and the failure of their legal challenge. Point of fact they DO want the Federal Government to be able to make laws specific to certain races, but supposedly only for their positive benefit. The irony is that the Intervention was supposedly in the interests of aboriginal people, specifically women and children. Which exposes how shortsighted their attitude is.
Legislation that impacts the Indigenous population covers two main types. There is coercive legislation designed to curb dangerous and anti-social behaviour. And there is enhancing legislation designed to advance Aboriginal people in education, sport, employment and housing.
Coercive legislation applies only to those communities that are dysfunctional or severely disadvantaged.
As far as I am aware, no urban Aboriginal activist has ever had any major, in principle, issues with enhancing legislation that distributes public money to Aboriginal causes, be they substantive – such as guaranteed university places, protection of Aboriginal heritage etc – or symbolic, such as promotion of Aboriginal culture.
No Aborigine is compelled to accept any of this largesse if they find it inadequate or wrongly targeted. But they are free to lobby to have it changed or expanded. They can do this through their Parliamentary representatives or through their own activist groups. In exactly the same way that, for example, farmers have a say in the formulation of laws that affect them via the National Farmers Federation.
On the other hand, coercive legislation is contentious and should be underpinned by the most rigorous expert advice available. That will not come from a 24 member talk-fest assembly, appointed or elected from 35 regional councils. It should certainly be informed by the people most directly affected by it, i.e., leaders in the communities affected. Urban Aborigines, unless they are tertiary qualified in this field, are no more capable of offering useful advice in these cases than I am.
Remove all racist law
Should we remove all reference to a Aboriginals in law and treat everyone equally, then there would be no racist laws for anyone to complain about — mission accomplished everyone become equal Australians.
I want to dispute this idea that Australia was stolen from the Aborigines. Over thousands of years Australia’s many indigenous tribes and groupings were constantly in conflict with each other over territory and resources and this is well documented. Escaped convict William Buckley who lived amongst tribal Aborigines for many years graphically described this. The night time raids on enemy camps which were effectively genocidal were evidently common and normal.
Then the new British tribe arrived and coming into conflict with them over territory and resources was just a continuation of the status quo. Aborigines surely lamented their failure to defeat the technically advanced and more organized British tribe but the struggle itself was situation normal.
For over 10,000 years Neolithic farmers have conquered, replaced and absorbed Paleolithic hunter gatherers. It is the longest continuous thread in human History. This is what happened in Australia.
In Australia it is relatively recent. In other places like western Europe and East Asia it happened so long ago that folk there can look down on us from the moral high ground of having long forgotten the same thing happening in their own countries.
Whilst I believe that knowledge and understanding of history is very important, for todays Aborigines the best advice is to stop dragging the past and take full advantage of their Australian citizenship which is what most actually do.
Thanks for yet another brilliantly perceptive analysis, Keith. For me, your most outstanding statement here is: “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.”
It’s such a pity that the Voice advocates are so ignorant of real history. When times get tough, inevitably minorities become scapegoats and targets, and the more conspicuous they are, the greater they suffer. With the ongoing disintegration of our social fabric, driven by population growth, economic insecurity, resource issues, energy supply uncertainty (tied in with climate paranoia), the last thing we need is a fragmented society, but that is precisely what the idiotic policy of “multiculturalism” promotes. To then insert an additional, favoured Aboriginal class into the growing mess, is to set up a conspicuous focus for future demagogues and malcontents. The Jews of Europe presented such an easy target because of their cultural distinctness; if times get really tough in Australia, it’s not difficult to see how exceptionalistic minorities here, particularly ones seen as privileged, could become subject to violent blame and abuse.
Sure, we come from many different backgrounds, but it’s high time we try harder to think of ourselves as members of a coherent society, needing to work together, instead of historically-victimised groups in need of special treatment; whatever happened to the slogan, “We are one . . . we are Australian”?
Contrary to the author’s assertion that “nothing can turn a white man into an aborigine”, it seems to me that politics has done just that.
Aboriginal peoples in 1788 were not one race. They were not even one people. Between 350 and 500 groups were here, many no more than family clans, without a common language, descended from different waves of migration and different peoples.
Today we have thousands of variations on those themes with most of those who register Aboriginal ancestry so minimally Aboriginal in ancestry they are not. Their dominant ancestry is Anglo-European but no money in that.
To divide Australians up according to ancestry longevity is simply racist, undemocratic and unconstitutional. I don’t give a toss if you trace a distant ancestor back a thousand years or became a citizen yesterday. And neither should any Australian who values democracy and human rights.
It was so depressing to see photos of Jacinta Price, who has appeared to be a voice of common sense and reason on this issue, with her dressed up in some sort of Aboriginal costume with feathers in her hair, like some American Indian, carrying a stick which had been given to her, she said, so she had authority to speak for her community, her Aboriginal community, playing another version of Lydia Thorpe.
In her maiden speech she said: My goal is to halt the pointless virtue signalling……
and there she was, indulging in pointless virtue signalling, with her Aboriginal print dress, her feather and her stone-age tribal talking stick. If she had any sense at all she would have at least worn a kilt or something to balance out her Celtic/Warlpiri ancestry. And she would have ensured there were photographs of her with aunties from the aboriginal side and aunties from the non-Aboriginal side, but no, just playing the same old virtue-signalling, Aboriginal ancestry game.
It was not unexpected but it was just so disappointing and indicates a lack of experience and maturity which should make us all grateful she was NOT made Shadow Minister for Aboriginal issues. She has much to learn and this was not a good start.
The San people of Ethiopia beat the Australian Aboriginal people by around 20,000 years when it comes to the oldest continuing culture. But never let facts get in the way of ‘black arm band’ history. When it comes to the politically correct and racist “voice” I would say to all those who support it and the wholly legally repugnant idea of Aboriginal sovereignty, including the ALP’s current Prime Ministerial iteration, Anthony Albanese (noting, on his own argument, he has ‘stolen’ land from the Aboriginal people himself in Sydney’s Marrickville for which he really should say sorry), that you should sign over all your real estate to the Aboriginal people, pack your bags and quit these shores, because that is the logical extension of the left’s argument. Somehow, I just cannot see any left wing elitists (especially in Sydney, where real estate is coveted like a sacred site more than anywhere else in the country) doing anything of the sort. After all, people like Zali Steggall need all the security that only bricks and mortar can offer to keep an eye on their teal tinged trust fund’s coal stocks.