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The Recognition Referendum

I have written before about my great concern for indigenous Australians. It cannot be denied that from the time of European settlement in Australia our Aboriginal population has suffered terrible injustice. This injustice, compounded by the well-meaning but largely unsuccessful interventions by Governments of all persuasions, has resulted in an indigenous population suffering severe disadvantage. We only need to look at the statistics on longevity, health, unemployment, incarceration and a host of other social indicators to understand these Australians have been let down.

Successive Governments have spent more and more on indigenous welfare and social programs with little or no effect. A huge industry has been established supporting these measures, and with it has come a strong vested interest group urging more such expenditure despite its inefficacy. Expenditure on such programs by Commonwealth, State and Local Governments is well in excess of $20 billion dollars per annum!

In the past I believe the most considered and erudite commentary on indigenous affairs has come from indigenous activist Noel Pearson. He is a person I greatly admire. He has identified the problem of welfare dependency as being paramount in addressing the indigenous disadvantage. He has preached this philosophy courageously in the face of opposition from the vested interests I mentioned above and indeed even from his own indigenous communities.

Pearson has demonstrated the importance of education (particularly school attendance), income management in dysfunctional communities, the empowerment of local communities, the development of employment opportunities, and the control of alcohol and drug consumption in remote communities. He has also been a strong contributor to the debate regarding constitutional change. In great respect for Pearson I must reluctantly say I cannot agree entirely with him on this issue.

It has been proposed that we should change our constitution in a way that properly recognises that indigenous people occupied Australia before they were over-run by European settlers. When Captain Cook formally took possession of Australia on behalf of the British Government, he did so invoking the concept of “terra nullius”, a legal concept which implied that the land so acquired belonged to no one. This ignored the fact that, depending on whose version of prehistory you believe, that Australia had been inhabited for probably at least thirteen thousand years prior by the ancestors of our indigenous population. And I suppose the Aboriginal claim to prior possession was always weakened by the fact they were a disparate people comprising many tribes, each of which could only make claim to a small amount of ill-defined territory, each of which had its own language and cultural traditions. Pre-European Australia was never a unified nation of indigenous people but a fractious conglomerate of competing tribal interests.

For some time those sympathetic to the indigenous cause have argued that proper affirmation of indigenous occupation prior to European conquest was required to ameliorate the hurt caused by European invasion and the appropriate place to acknowledge this recognition was in the Australian constitution. Thus started a movement, which had support from both sides of politics, to amend the constitution. The original ambition of the proposed referendum was merely to acknowledge the pre-European conquest occupation of Australia by indigenous peoples. There have now been many suggestions to extend that intent.

But there seems to me to be a great danger here.

The cause seems valid and worthy. Any thinking person would want to take any steps necessary to improve the lot of our fellow indigenous men and women. But I have reservations.

In retrospect I wonder if the proposed change to the constitution to recognise the prior occupation of Australia by indigenous people is only symbolism. Will it help educate another indigenous child, provide another indigenous job or reduce the level of indigenous incarceration?  We have of course previously indulged in such symbolism with little effect other than it made people feel good for a short time. Kevin Rudd’s heartfelt apology for the stolen generation, the walk across Sydney Harbour Bridge, the various welcome to country ceremonies, the Sorry Day and so on are well-meant gestures but it is hard to demonstrate they have advanced the indigenous cause in any meaningful way. In some cases these initiatives have been unhelpful by exaggerating the sense of victimhood that some felt. I would still vote for such a change (recognition of prior occupation) only because it is likely to do little harm and may create (for a short time) a little goodwill.

If there were to be further changes to the constitution the only one that I, at this stage, could agree to is the removal of all reference of race from the document. We don’t need a constitution that discriminates either for or against any of our citizens on the basis of ethnicity.

History has demonstrated the great difficulty of constitutional change. We as a nation seem to be at our most conservative, and probably rightly so, when there is a move to modify the constitution. Noel Pearson acknowledges this and maintains that if the referendum is to be successful it must be led by the conservatives.

Pearson was part of the expert panel advising the Government on the proposed amendments to the constitution. Initially they had recommended that an anti-racial discrimination clause be included. But the conservatives responded by pointing out that that would give racial discrimination especial status above all the other forms of discrimination that would have no such protection.

As well he has recommended that a body be created to provide the Government an indigenous critique of proposed legislation – such a body would have no legal authority but to provide advice which the Government could choose whether or not to take heed of.

Again we would hope that this not be a constitutional requirement but something that the Government might choose to do administratively. If it was a constitutional imperative then that would elevate the status of indigenous disadvantage above and beyond all other disadvantaged minorities.

My preference is that we should deal with all issues of disadvantage. Pearson himself has shied away from playing the race card. He tells us that it is inappropriate to view others on the basis of their race. He stated that he would reject “the notion that indigenous people are of any race than the human race.”

That is something with which we should all agree. We should deal with the incredible disadvantage that some people are confronted with. There is no doubt that when it comes to disadvantage indigenous people are disproportionately over-represented. We should take action to rectify this, not because they are indigenous, but because they are disadvantaged.

Probably the most dangerous suggestion regarding constitutional change is that a set number of Parliamentary seats in the Senate should be set aside for indigenous candidates. The nature of democracy is such that we require members of Parliament to represent all their constituents. We expect our non-indigenous members to progress the causes of their indigenous constituents, just as we expect the growing number of indigenous representatives to also progress the causes of their non-indigenous constituents. If we accede to the request to have specific representation for aboriginals, how long before we must do the same for women, homosexuals, Greeks, Muslims, those with intellectual disabilities and so on.

In summary then I would vote for recognition in the preamble of the constitution that indigenous peoples were the prior occupants of Australia. However, I have reservations about how helpful this might be.

I would welcome the removal of all reference to race from the document. But I wonder, given our conservativeness when it comes to modifying the constitution, if this would have sufficient support to carry the day.

As usual, when it comes to indigenous affairs, it is easy to assuage our guilt by concocting feel-good gestures. It is altogether another thing to take practical steps that would have a real and lasting effect in advancing indigenous welfare.


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  1. 1 Comment(s)

  2.   By Joe Lane on Oct 7, 2014 | Reply

    Hi Ted,

    Agree about a minimalist inclusion in the preamble. Not so sure about changing those discriminatory clauses, since that would also negate any +ve discriminatory programs for Indigenous people. Plus provide lifelong lawyers’ picnics.

    Check out my “Re-Thinking Aboriginal History” on my web-site.

    All the best,

    Joe Lane

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