Bennelong Papers

The Mind-Bending Irony of the Case for ‘Recognition’

Noel Pearson endorses and advocates the view that constitutional recognition of Aboriginal people is effectively bi-partisan policy and suggests  that such a ‘reform’ is inevitable.  He further insists a majority of citizens also support ‘Recognition’. But if constitutional recognition is to come to pass, there is one obstacle that will have to be overcome: the obligatory referendum without which no change to the Constitution can be implemented.

Pearson quotes a poll claiming 57 per cent of voting-age Australians support recognition.  By itself, that means nothing, given that the required referendum must be approved by a majority of voters in a majority of states while also achieving an overall national majority. At every referendum, voters are to be informed by properly presented official ‘YES’ and ‘NO’ cases.  To date we have heard a lot of the former but nothing of the latter. What follows is a precis of the NO case.

To begin with, let’s look at the term ‘recognition’.  Most people would regard it as synonymous with ‘acknowledgement’.  That is, they would believe the proposal will be to acknowledge in the Constitution that Aboriginal people were the original inhabitants of this continent. That would seem a worthy and innocuous aim. But, in the context of the Constitution, ‘recognition’ means something more than that. Chris Kenny, writing in The Australian, sums it up this way:

Tony Abbott argues that recognition of Indigenous Australians would not alter the Constitution so much as complete it. This is true because the Constitution brought together six groups — the peoples of six colonies — and the people it overlooked as partners or participants were the original inhabitants.

Implicit in that sentiment is the idea that indigenous Australians should have been a seventh partner in Federation.  If this were the acknowledged basis for including indigenous Australians in the Constitution it would necessarily imply that some form of distinct political power resided with them. In today’s terms, it would give them the same political status as the six states. 

What form will recognition take?   How will it be expressed in the Constitution?  Pearson hasn’t been explicit, but the best guide to what he might be thinking is contained in the report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, established by Julia Gillard.  It proposed the removal of two existing sections and inclusion of three new ones.  Two of them capture the essence of the proposal. The first is to remove sub clause (xxvi) of Section 51, which states:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, good order, and good governance of the Commonwealth with respect to:

(xxvi)  the people of any race, for whom it is deemed necessary to make special laws.

This is now regarded as a ‘racist’ provision.  But in 1901 it was intended to allow the Commonwealth government to control the conditions under which foreign labourers from China, the Pacific Islands and elsewhere could work in Australia.  At that time, these workers were seen as threatening the conditions of white Australian workers.  In 1901, Aborigines were not covered by this provision.  At that time, it read (emphasis added):

(xxvi)  the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.

This original exclusion reflected the reality that, in 1901, Aboriginal affairs was seen as a state responsibility. In 1967, the vast majority of Australians, enthusiastically supported by the indigenous population, gave the Commonwealth the power to make laws in respect of Aboriginal people, by removing the above exclusion from (xxvi). 

 Second, it is proposed to replace clause (xxvi) with a new Section 51A, which reads:

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good governance of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

So the effect of this proposed change will be to remove one section which allows the Commonwealth government to make laws with respect to Aboriginal people, with another and wordier section allowing the Commonwealth to make laws with respect to Aboriginal people.

As anyone who has read it will know, the Constitution is not an aspirational document. It is, to put it simply,  a rule book that defines the powers and operation of the federal government. Its prose is arid and to-the-point. And that is as it should be in order to minimize the potential for misinterpretation.  The wording of the preamble in the proposed new section is totally at odds with both the rest of the Constitution and the imperative that constitutional provisions should be as clear and unambiguous as possible. No existing provision contains any reference as to why it was included. Phrases such as ‘acknowledging the continuing relationship…’ or ‘respecting the continuing cultures…’ without defining those ‘continuing relationships’ or ‘continuing cultures’ are so ambiguous as to offer an unlimited opportunity for misinterpretation. 

As a matter of principle, the Constitution should not be altered lightly. And if it is to be amended, new provisions should be as unambiguous as possible.

Pearson claims ‘We are a nation that does not recognise its Indigenous peoples.’

If by recognition he means acknowledgement of Aboriginal people, their place in our history and society, their culture and their achievements, the Constitution – a document almost nobody reads – is the last place you would look. 

Instead, you’d find it formally expressed in the Aboriginal and Torres Strait Islander Peoples Recognition Act of 2013.  You’d see it in the Aboriginal and Torres Strait Islander flags flying outside every public building in the land. You’d hear it in the ‘acknowledgement of traditional owners’ recitations or the ‘welcome to country’ ceremonies performed at almost every public event.  You’d witness it in the performances by Aboriginal artists at the opening ceremonies of every major cultural or sporting event.

To reiterate, constitutional changes should be both compelling and unambiguous.  The proposal outlined above fails both tests.

14 comments
  • Harry Lee

    Noel Pearson, and almost all Aboriginal leaders pursue “Recognition”.
    Now:
    Among Aboriginal leaders, is it only Jacinta Price who points to the extreme destructive features of Aboriginal behaviour and ask for remedial attention?
    That is, where is the recognition of the extremely high incidence of violence -murder, sexual predation, various other kinds of physical violence, and other criminality- that occur with Aboriginal communities?
    Consider the attention given to “deaths in custody”.
    Deaths in custody occur in extreme and very rare cases where Aborigines resist arrest and/or attack police or engage in other actions when police or prison guards attempt to calm the Aboriginal person who is acting out in extreme self-destructive behaviour.
    And the number of Aboriginal deaths in custody are tiny, tiny, tiny compared to the Aboriginal deaths and injury incurred by Aborigines on other Aborigines.
    That Pearson and other Aboriginal leaders do not recognise these point, and do not act on it, can be considered a matter of delusion, if not something even darker in its source.

  • Ian MacKenzie

    The problem for those advocating constitutional change through the prescribed referendum is answering the question “Why should one race be treated differently from any other race?” It will be interesting to see the Woke trying to overcome Australian egalitarianism to answer that question.
    If the response is because Aboriginal Australians were here first, then that logically implies a sliding scale with the British favoured second, and very recent arrivals such as the Somalis favoured last. Perhaps there should be a list in arrival order in the constitution. I can’t see anyone agreeing to that.
    If the response is that identity politics identifies Aboriginal Australians as victims, then the answer is that many non-Aboriginals are worse off than many Aboriginals. Why shouldn’t they be recognized as well?
    If the response is based on the claim that Aboriginals never ceded sovereignty, the answer is that claims of sovereignty are recent and post-date the constitution. These recent claims were made by Aboriginal people who are Australian citizens. I’m an Australian citizen, so what’s to prevent me from claiming sovereignty and demanding recognition in the constitution.
    Any other reason, especially those based on race, will also result in unacceptable consequences. Therefore the safest course of action, with the least chance of unforeseen outcomes for all Australians, is to leave the constitution as it is.

  • PT

    The point of the race powers provision is that ONLY the Federal Government, and NOT the states or local authorities can pass laws that only apply to a specific race. The point of this is to ensure such laws are consistent throughout the country. Aboriginals were originally excluded as States had their own laws which differed and were unwilling to give them up as they were cited as fitting their unique circumstances.
    .
    As stated, the Aboriginal campaigner whilst whinging about it and demanding its removal want to just the same as they want separate laws that only apply to Aboriginal people. It’s ridiculous that know one has called them out on this. To my mind, all this obsession with that clause stems from Howard’s intervention. Remember this was challenged and the challenge dismissed on the basis that the law doesn’t have to be specifically in the interests of the group concerned! Interestingly the intervention was for the protection and f aboriginal women and children (as aboriginal as the men surely), and so it would have passed even this test.

  • Farnswort

    “To begin with, let’s look at the term ‘recognition’. Most people would regard it as synonymous with ‘acknowledgement’. That is, they would believe the proposal will be to acknowledge in the Constitution that Aboriginal people were the original inhabitants of this continent. That would seem a worthy and innocuous aim.”

    On the surface this seems reasonable. But if one is to provide a fair account of the nation’s origins, then one must also acknowledge that modern Australian wouldn’t exist in its current form without British settlement. Should Anglo-Celtic Australians – members of the country’s founding majority – also receive special recognition in the Australian Constitution? I don’t see any push for recognition to be extended to any ethnic groups beyond Aboriginal Australians.

    Granting recognition to one group – and one group alone – would create an ethnically biased constitution.

  • Harry Lee

    The Australian Constitution already allows for violent, parasitic, indolent, ignorant, superstitious ingrates to get what they want.

  • Patrick McCauley

    Constitutions are written by and for the citizens of the country the Constitution describes. The woke Indigenous tell us over and over again that this country ‘always was and always will be’ Aboriginal – and they claim to want to ‘burn Australia to the ground’. Most of the discussion with Aboriginal Australia is about ‘sovereignty’ and ‘treaty’ … one could very easily get the distinct impression that Aboriginal people do actually not want nor wish to be part of Australia. Why then should we be wringing our hands over how to insert Aboriginal people in the constitution of our country – that they do not wish to be part of ?The invitation has been made – we have grovelled for fifty years – and now its time to stand by our constitution and acknowledge ( ‘recognise’) that the Aboriginal Leadership (if not the entire Aboriginal people) – do not wish to be part of Australia. Perhaps this is true ‘Recognition’.

  • NFriar

    @Patrick – how can I say WELL SAID!

  • Patrick McCauley

    If the Aboriginal people had been able to write – and if they had written their own ‘constitution (rather than a Makeratta) – do you think that they would be sweating blood over how to include the Pygmies in their constitution ? – or would they simply have just wiped them out completely ?

  • Harry Lee

    Aboriginal culture/s are clearly dead-ends -just nothing in ’em to deal with the world beyond these shores, or much within ’em.
    They did not even provide for their peoples to flourish -the terrible violence, esp against women and children, infants was observed and noted by European visitors before Cook (eg Dampier).
    Some explain all that by the isolation -no new ideas could come in to help Aborigines expand beyond their cul-de-sac.
    Still, the dead-endedness of much of Australian White culture is also evident:
    The determined clinging to ignorance, the indolence, the ingratitude to England and the English and the associated ignorance of Australia’s place in the world, the excessive use of alcohol and now other recreational drugs, and the harping on that the government should do something to make everything nice.
    And now too there’s the acceptance of the death of functional White society by way of affirmative action for persons of Identity and the demonising of Competence, and by multiculturalism and 18C which are actually covers for anti-Europeanism, and the warm welcome provided to agents of the CCP by way of the now fully-degraded university system.
    And a Constitution which enables the use of funds created by the White productive striving classes to fund their enemies in the marxist propaganda machines that are the ABC, SBS, the state education systems, the universities, and the human rights/no responsibilities industry -and even enables the existence of the ALP and the Greens whose marxist-inspired Big Statist ideology has gained great traction among the people by encouraging/endorsing/rewarding parasitism and cost-less false/fake/destructive woke virtue.
    Most White Australians are as clueless as the Aborigines were in 1788 about the changes that are fast upon them.
    But Whites always tried to help the Aborigines, vastly nett nett, despite complaints about fake/false massacres and such.
    By contrast, the Chinese and Muslims -who will fight over the carcass of Australia’s White-established infrastructure- seek merely to enslave any Whites who survive the coming, erm, processes.
    (The Chinese will win of course.)

  • DG

    The whole risible notion of ‘recognition’ in the constitution is either a beat up for the clamouring latte-sippers, or a mendacious attempt to insert racist provisions into the constitution to overwhelm the good graces of most Australians for the manipulative benefit of those who’ve demonstrated an unlimited capacity for self-delusion and consumption of other people’s money. None of it will protect Aboriginal children and women or encourage the development of dignified engagement in work. And that’s where the effort must go so we can all be citizens together with all children and women having a fair chance at enjoying the life they seek.

  • Harry Lee

    By proportion, the majority of Aborigines now better lives than did their forebears before the British arrived/invaded.
    Those who do not live well have been given the wrong steer by their Aboriginal leaders and their non-Aboriginal advisors/puppeteers.
    Also for context, please note:
    African Blacks in the Anglosphere USA live vastly better lives than Black Africans live in Black Africa.
    Those who do not live well have similarly been badly puppeteered by Others of various colours and creeds.
    Ditto almost all Muslims from everywhere.

  • lhackett01

    Ian MacKenzie is correct. There must never be allowed in our Constitution any discrimination between our peoples. Indeed, who are these Aborigines who claim, now, to have been in this land for about 60,000 years? Until ‘political correctness assumed power in more recent times, there was much evidence from early anthropologists revealing there were several ‘waves’ of occupation by different peoples. Each wave displaced earlier waves. The Aborigines here at the time of settlement by the British were the descendants of those various earlier occupants, albeit comprising many disparate groups spread across the continent, having different customs and languages. The British were another wave in 1788 and were the wave who established unity within the land and wrote a Constitution for all the people. Since 1788, there have been several other ‘waves’; Chinese, Italian, Greek, Vietnamese, the list goes on. Our Constitution makes no distinction between these ‘waves’ and neither should it make any distinction regarding Aborigines.

    “The definite evidence of Negritoid genes in Northern Queensland, as adduced by Tindale and Birdsell (1941) does show a persisting Negritoid element in that area, some of whose genes will have spread into other parts of Australia.”

    Tindale and Birdsell state, “Our studies demonstrate that in the eastern coastal and mountain region near Cairns is an area where exist several small tribes of a people characterized by a high incidence of relatively and absolutely small stature, crisp curly hair, and a tendency toward yellowish-brown skin colour. They were recognized as more or less mixed with the Australian Aborigines, though still preserving some characteristics of the Tasmanians, who are universally classed with the Negritos of South-Eastern Asia. At this time, Tindale and Birdsell found three ethnic elements in the Australian aborigines, which they called Southern, Northern and Tasmanoid. Later,the first two were renamed Murrayan and Carpentarian, and the last, Berrineans.”

    The Tasmanoids were found to be segregated mainly on Mission and Govern¬ment Settlements at Yarrabah, Monamcna and Palm Island, the latter off the coast of N. Queensland, near Townsville. The burial customs of these Tasmanoid tribes were found to resemble those of the extinct Tasmanians.
    Given that the Tasmanian Aborigines (now extinct) were Berrineans, it is probable that they may have been the first inhabitants of Australia.

    “If the Murrayans later entered Australia through York Peninsula they would have driven the Negritoids (now mixed with Murrayans) southwards over the partly submerged peninsula (now Bass Strait) intoTasmania, perhaps at a time when the sea-level was already rising, at the end of the last glaciation. Even a short gap would have prevented the dingo from reaching Tasmania, as the Tasmanians had only very frail bark rafts. Negritoids who remained behind in Australia would be exterminated by the Murravans unless they found refuge. These Berrineans of North Queensland appear to be a remnant of such a Negritoid people. The alter¬native hypothesis, that the Tasmanians, without boats, reached Tasmania from remote New Caledonia, seems scarcely worthy of consideration.”

    Reference: Compiled from: Racial elements in the Aborigines of Queensland, Australia, by H. Ruggles Gates, Cambridge (Massachusetts)

  • gardner.peter.d

    Respect is as problematic as recognition. What does it mean in constitutional terms? So if I fly an Aboriginal and Torres Strait Islander on my flagpole because doing so is required by law, is that respect? It’s a sham.
    I first visited Australia in 1966 and emigrated to Australia in 2009. Having an interest in cultures and, partoiulary, arts, I have looked long and hard at Aboriginal art and culture. I understand it reasonably enough but how can I respect it as being in any way superior to any other, nor to rate it above European, Indian, Chinese, American cultures? The fact is it is a primitive and backward culture – as are all aboriginal cultures around the world. I find the adulation of Aboriginal art incomprehensible. It is historically important for what is shows and and it is right that knowledge of Aboriginal culture should be maintained. The question is to what end? Elevating it to a superior status it does not merit is nothing more than sophistry and wishful thinking. Of course one can and should learn from past experience by Aboriginals as from human experience in any other culture. The aim should be to enhance human development, not to hinder it by confining it within the bounds of primitive understanding.

  • nfw

    I will be voting NO as I don’t trust anything politicians and “experts” say. You can count on it not being good for the majority of us who actually produce the wealth in this country. It’s similar to voting each year for the real owners of listed companies; anything the Board proposes should be voted against because you can bet it only benefits the Board members and their mates.

    I would like to see a real constitutional change along the lines of “No state or territory may stop residents from another state or territory entering and may neither subject them to non-judicial detention or charge them for any quarantine”. And another “Quarantine is the purview of the Commonwealth only”.

    I would really like to see a mechanism whereby with enough real and proven signatures of voters there would be proposed changes to laws and the various Constitution at every federal and state ballot. Of course that would never happen as our politicians (and public servants) know “the truth” and can’t have the hoi polloi deciding what is good for themselves or what they want. Imagine real democracy! Nah, not in Australia.

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