Australian 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 I do not object to Australians of Aboriginal heritage embracing, practising or celebrating their interesting culture, so long as it does not violate fundamental legal rights and it is within the confines of the rule of law.
Instead, this article is about our nation’s ruling elites and their notorious contempt for the average Australian citizen. Such arrogant elitists hold the Australian people in utter contempt. They think Australians are generally racist, sexist and xenophobic. Indeed, many members of the political establishment and cultural elite take special delight in accusing Australia of being inherently a racist country. Such elitists manifest a desire to remove “racist” provisions from 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”.
In this context, the Morrison government is already proposing legislation to establish a “First Nations Voice” in Parliament. It would be constituted as a standing consultative body to advise the government on laws and policies arguably affecting Aboriginal people.
The idea comes as a response to recommendations made by an Aboriginal National Constitutional Convention, held on May 17, 2017. Such gathering resulted in the release of a document entitled the Uluru Statement from the Heart, which not only proposes that consultative body but also the establishment of the Makkarrata Commission to supervise a process of agreement-making with Australian governments and to oversee a process of “truth-telling” about Australia’s history.
Emeritus Professor Gabriël A. Moens AM is one of the nation’s most prominent constitutional lawyers. In a recent article published in Quadrant Online, he warns that such a proposal is “seriously flawed for a variety of reasons”. For example, he explains that the creation of a consultative body “inevitably involves the granting of special privileges to one group merely on the ground of the race of its members”. As Moens also points out,
the distribution of societal benefits on the ground of a person’s race, which is an incident of birth, makes a mockery of governments’ stated reassurances to create a society where a person’s race is irrelevant.
The establishment of the the Voice may also result in government paralysis, according to Professor Moens. This is because the new body would have to be consulted by the government before it introduces any new legislation. Although the proposed legislation could make it clear that the Voice would only be consulted if proposed laws and policies arguably affect Aboriginal people, such argument, Professor Moens observes
is disingenuous because all general laws, since they are made for all the people of Australia, potentially impact on Aboriginals. Indeed, it is not appropriate to exempt any racial group from the application of Australia’s general laws.
The Uluru Statement also envisages the incorporation of the Voice in the Australian Constitution, which has Prime Minister Scott Morrison mooting the possibility of taking Australians to a referendum that could enshrine the Voice in the Constitution. In fact, both the Coalition and Labor opposition support the establishment of such a body in Parliament. Mark Leibler, former co-chair of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians, describes the Prime Minister, unlike his predecessor Malcolm Turnbull, as particularly interested and “genuinely open to the idea”.
Contrary to claims that our Constitution is a racist document, it is entirely colour-blind and makes no mention whatsoever of any ethnic group at all. Instead, our Constitution is no more than the product of a “federal compact”, or agreement 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. In other words, it is a practical document designed to establish a federal system of government. It is not a synopsis of Australian history and it was never intended to report the history of the Australian people. As such, it is totally inappropriate to use it to promote one group over the rest of the population. Indeed, one of the great virtues of the Constitution is precisely its equal treatment of citizens regardless of race, culture or origin.
Nonetheless, section 25 of the Constitution is often (mis)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 this section was included in the Constitution is because, in the 1890s, Queensland and Western Australia practiced discrimination. These two States did not allow individuals of exclusive Aboriginal ethnicity to vote in their state elections. The framers thought this was wrong and wanted to bring them into line with all the other States where the 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”.
Rather than denying indigenous people the franchise, the founders effectively supported giving Aborigines voting rights from the very outset. Indeed, most Aborigines had full citizenship in 1901 and, contrary to false accusations of racism, section 25 was designed to penalise the Australian States that discriminated against them by reducing their representation in federal Parliament.
Another provision in the Constitution often identified as “racially offensive” is section 51 (xxvi), which determines that Parliament has power to create laws with respect to “the people of any race, for whom it is deemed necessary to make special laws.”
However, not once since Federation has section 51 lent any support to unfair discrimination on the grounds of race. To the contrary, in Kruger v. Commonwealth (1997) Justice Dawson of the High Court stated that the powers conferred to the Commonwealth under this provision “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 head of power wholly with the Australian States. As noted by 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”.
Accordingly, the repeal of such provision would prevent the federal government from creating sensible policies that could attend to the special needs of the Aboriginal people. For example, the Howard Government’s intervention in the Northern Territory in 2007 was clearly intended to rescue disadvantaged children from horrible neglect and sexual abuse. To undertake this policy the Commonwealth had to exempt itself from the applications of the Racial Discrimination Act 1975, a manoeuvre that only was possible because of the existence of section 51(xxvi) of the Constitution.
As can be seen, far from being “racist” the Australian Constitution treats everyone equally, no matter when they or their ancestors arrived here.
So why is it so necessary to amend our Constitution when it is clearly not a racist document? Why is it claimed to be necessary when every jurisdiction in Australia has already legislated for racial non-discrimination? Arguably, a successful referendum would not unite but divide us along lines of ethnicity and ancestry.
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 that 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”. The result was only 39 per cent of the Australian citizens voting “yes” for the preamble.
To “fix” the problem the previous Labor Government spent millions in an “education” campaign to convince the people of the supposed benefits of recognition. To gather enough popular support, emotional language was used to make Australians believe they had no other option but to support recognition. According to the Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel, released in September 2014:
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 voice demanding far-reaching changes for “the Aboriginal people”. The great hypocrisy in all of this is that the paternalism of the past that the present elites allegedly decry, they now wish to impose upon “the least fortunate, least educated and most isolated”.
Sadly, writes Dallas Scott, an Aborigine, “this is the enduring legacy of Aboriginal affairs in Australia”. He is particularly critical of privileged individuals who identify as Aboriginal but, in his view, “don’t have any idea about what it’s like to be black”.  He is also talking about “Aboriginal leaders” with no democratic mandate to make decisions for others and to speak for them. As Dallas 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.
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.’
Constitutional recognition offers the potential to create different rules for people with different ethnicity and ancestry. This could benefit a few but it could also keep many Aborigines from reaching their full potential. An example of this can be found in the practice of placing children in need of care with “culturally appropriate” carers. “This practice has sometimes ended in tragedy”, writes Dr Anthony Dillon, a university lecturer who identifies himself as a “part-Aboriginal Australian”. Because of such race-based discriminations, he 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.
Of course, constitutional recognition could also tempt people to “play the race card”, thus aggravating differences between Aboriginal Australians and all the other Australians. Rather than generating real reconciliation, any recognition of a separate group could poison inter-cultural/ethnic family relationships, “driv[ing] 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?
But what about adding a new preamble that simply acknowledges Australian Aborigines as the nation’s first people? Unfortunately, any new preamble which added the ethnic-cultural element would be incompatible with the inherent subject-matter of the Constitution as a rule book for the establishment of a federal system of government. It goes without saying that Aboriginal culture already is very well recognised by Australian law. There are numerous laws, both at federal and state levels, specifically dealing with Aboriginal matters, such as native title and heritage. There is also present legislation to ensure Aboriginal culture is properly taken into consideration. This recognition has engendered a number of unintended difficulties where culture must be defined, with the acceptance as “cultural” of a few patterns of behaviour which otherwise would not be tolerated.
There is little doubt that Aboriginal culture includes a number of admirable aspects. However, as with every single culture it also contains 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’. And what about the initiation rite to manhood practiced by the Arrarnta 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’.
Intercourse for these individuals becomes really difficult after undergoing these “cultural” procedures. The penis is so disfigured that the organ of just-pubescent girls are also to be “modified” in order to accommodate. As explained by a commentator:
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 unintended incentives to the legitimisation of such heinous practices. However, some powerful members of the legal profession have expressed their utmost desire to recognise every single aspect of Aboriginal cultural practice, including pay-back and tribal punishment. For example, the Australian Law Reform Commission’s report on the ‘Recognition of Aboriginal Customary Laws’ (ALRC Report 31, 1986) commented 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’. Similarly, the 2012 report of the Expert Panel on ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’ regarded the support for recognition of customary law into the Constitution as “one vital component” that includes “respecting the constituting cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples”. In practice, recognising “cultural rights” may allow punishment for certain criminal acts to be considerably lessened for some individuals. It could engender unfair inequality in criminal cases, in administrative matters concerning benefits, grants and other special provisions, and in civil cases concerning “offended” plaintiffs.
Above all, there should be no special treatment of individuals or groups under the Australian Constitution. “We’ve got here first” is a poorer principle than the equalitarian principle of democratic constitutionalism that “We are all created equal and endowed by the Creator with certain inalienable rights”. As properly stated by Ian Callinan QC, a former judge of the High Court:
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.
In his book concerning Aboriginal recognition, The Break-up of Australia, Keith Windschuttle explains why Australians need to be told the truth about recognition in the Constitution. According to him,
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.
Having been an academic in this country for almost two decades, and having served as a Law Reform Commissioner in Western Australia, allow me to state that my interactions with the “political class and cultural elite” confirm the veracity of Windschuttle’s statement.
As can be seen, the campaign for constitutional recognition is not just about Aboriginal rights, since following a successful amendment what comprises such rights would become a matter of interpretation by the High Court. Because judges are not directly accountable to the Australian people, the unelected members of this Court, argues Windschuttle, ‘are far more likely to give Aboriginal activists what they want then are politicians’.
Led by Prime Minister Scott Morrison, however, the political establishment has a vested interest in fomenting a divisive agenda that ultimately undermines the rule of law and its fundamental principle of equality before the law. This is simply a revisitation of the ancient “divide and conquer” strategy so successfully applied by the ancient Romans. It clearly facilitates the attainment of more power and control by those who are able to divide the people of our nation into countless lines of culture, origin and ethnicity.
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is also a former Law Reform Commissioner in WA (2012-2017) and President of the Western Australian Legal Theory Association (WALTA). This paper was presented at “A Divided Australia?”, a seminar held last Thursday by The Civivilisationists in partnership with WALTA at the Sheridan Institute of Higher Education, Perth/WA.
 Anthony Dillon, ‘Recognising May Mean Never Closing the Gap’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 55.
 Gabriël A. Moens AM, ‘Entrenching a Divided Australia’, Quadrant Online, 15 February 2021, at https://quadrant.org.au/opinion/bennelong-papers/2021/02/entrenching-a-divided-australia/
 Mark Leibler, ‘Co-Design Brings Voice an Octave Closer to Success’, The Australian, January 22, 2021, at https://www.theaustralian.com.au/commentary/codesign-brings-voice-an-octave-closer-to-success/news-story/1f7bbab4b5025413b8dbccbe149f979e
 Wesley Aird, ‘Recognition is Blackfella Politics’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 49.
 Keith Windschuttle, The Break-Up of Australia: The Real Agenda Behind Aboriginal Recognition (Sydney/NSW: Quadrant Books, 2016), 2.
 Kruger v Commonwealth (1997) 190 CLR 1 (Dawson J).
 James Allan, ‘Recognition Hands Power to Judges’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 27.
 Dallas Scott, ‘Fighting a War Already Won’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 80.
 Ibid, 79.
 The Hon John Anderson AO, Ms Tanya Hosch and Mr Richard Eccles, ‘Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples’, Final Report of the Review, The Commonwealth of Australia, September 2014, at FINAL-REPORT-OF-THE-ACT-OF-RECOGNITION-REVIEW-PANEL.pdf (oxfam.org.au)
 Scott, above n 10, 81.
 Ibid., 82 and 84.
 Dillon, above n 1, 61.
 Gary Johns, ‘Introduction’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), xvi.
 Ibid., xx.
 Kerryn Pholi, ‘Upsetting the Intermarriage Applecart’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 63.
 Brian Pape, ‘Cosmetic Preamble an Irrelevant Adornment’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 44.
 Gary Johns, ‘Already Recognition Enough’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 29.
 Johns, above n 22, xv
 Alistair Crooks, ‘An Aboriginal Constitution’, in Gary Johns, ‘Introduction’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), 15.
 ‘Recognition of Aboriginal Customary Laws’, Australian Law Reform Commission, Report 31, 11 June 1986, at https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/
 Crooks, above n 31, 17.
 ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’, Report of the Expert Panel, Commonwealth of Australia, January 2012, at https://antar.org.au/sites/default/files/expert_panel_report_.pdf
 Johns, above n 22, xvi.
 Dillon, above n 1, 65.
 Aird, above n 6, 49.
 Ian Callinan AC, ‘Preface’, in Gary Johns (ed.) Recognise What? Arguments to Acknowledge Aboriginal Culture or rights, in the Australian Constitution (Connor Court, 2014), xiii.
 Windschuttle, above n.7, 422.
 Ibid., 15.