The Yes and No Cases for Constitutional Change
Editor, Quadrant Magazine
In his first statement on assuming office, our new Prime Minister Anthony Albanese committed his government to implementing in full the Uluru Statement from the Heart that proposes changing the Australian Constitution to give specific recognition to Aboriginal and Torres Strait Islander people. This is a view that Quadrant has opposed for more than twenty years. We believe that rather than unifying Australia’s population, such a measure would deeply divide us. It would be a disaster for both black and white Australians. Moreover, we believe that the full agenda behind the proposal has never been put to the Australian people. Its revival, and Albanese’s pledge to put it to a referendum in his current term of office, means it has become once more a critical political issue that deserves an immediate but thorough response. The article that follows is Part One of a multi-part response that will be published weekly for the next two months on Quadrant Online.
IN THEIR book, Everything You Need to Know About the Referendum to Recognise Indigenous Australians (UNSW Press, 2015) Megan Davis and George Williams provide a concise version of the Yes and No cases for constitutional amendment. While their Yes case is a pithy summary of the arguments they make throughout their book, and an accurate account of the main points of their case, the No case they publish is a forlorn creature, which they have written to give the impression that dissenters have only feeble arguments on their side. When they put the No case, they were clearly running dead.
Davis and Williams could have easily found an opponent of constitutional recognition to write the No case for their book. There is no shortage of authors. In 2014, Gary Johns put together a team of twelve writers for his own dissenting anthology, Recognise What? Some of the contributors to Johns’s book are, like Davis, academics of Aboriginal descent, who probably would have been glad to help. Unfortunately, Davis and Williams chose not to undertake a fair debate of this kind.
So, to even up the debate, I present here the Yes case of Davis and Williams in its strongest form. I reproduce, verbatim and in full, the text of their own book’s Yes case. But instead of their lame duck No case, I follow each of their arguments with responses of my own showing why their case is devoid of credibility and why Australians should not support this proposal.
1/ Yes: The Constitution was drafted to exclude Aboriginal and Torres Strait Islander peoples from the political settlement that brought about the Australian nation. We need to fix that historic exclusion.
No: Aboriginal and Torres Strait Islander peoples were not excluded from the political settlement that produced the Constitution. Like all other colonial Australians, Aboriginal people had the right to vote to appoint the delegates to the Constitutional Conventions in the 1890s and to vote to approve the eventual Constitution when in 1899 it was put to the people for final consent. There was no “historic exclusion” of indigenous people.
At Federation, our Constitution made Australia widely recognised as the most democratic country in the world. In the Australian colonies before 1901 and in the nation and states after Federation, the great majority of Aborigines had the same political rights as other Australians, including the right to vote, which the Constitution guaranteed them in Section 41. The then sparsely populated states of Queensland and Western Australia, where there were property qualifications for voting, were the only exceptions. Aboriginal people were active participants in colonial elections throughout the 1890s in New South Wales, Victoria, South Australia and Tasmania, and in the same states after Federation in 1901. Claims that the Constitution denied Aborigines the right to vote, and therefore denied them citizenship and excluded them from the nation, are myths based on political fabrications and bad legal scholarship.
2/ Yes: It is important that the Constitution, the founding document of the nation, recognises Australia’s full history; not just the period from British settlement.
No: The Constitution was never intended to be a history of the Australian people. It does not mention the history of any particular ethnic group, and there is no good reason to make an exception for Aborigines now. It is a legal compact between the people of the six former colonies to form a nation, and its principal function is to distribute various powers between the Commonwealth and the states. It is a practical charter of government, not a synopsis of Australian history. Moreover, the Yes case here confuses the history of the continent, which has been occupied by Aboriginal people for 50,000 years, with the history of the nation, which was formally created in 1901 and whose origins date back only to 1788.
While Aboriginal people had full citizenship in 1901, none of their ancient laws were adopted into the Constitution, not for racist reasons but because they were not applicable to the needs of a modern industrial society. The history of Aboriginal people on this continent before 1788 is an enthralling topic, but it is not the history of the Australian nation.
3/ Yes: We need to remove discrimination from our Constitution. It should prevent, rather than permit, racial discrimination so that all Australians are treated equally.
No: Left-wing academics and Aboriginal activists have been trying for decades to transfer decision-making about Aboriginal affairs from parliaments to the High Court, where they get a more generous hearing. Their claims that the Constitution discriminates against Aborigines are part of this ploy, and are based on false claims about a decision the court has never made. One of the Constitution’s two sections they want to repeal was reworded in 1967 after the referendum that year gave the Commonwealth the right to legislate for Aboriginal people, a right previously confined to the states. More than 90 per cent of the Australian electorate then voted in favour of the clause, a result widely celebrated at the time by Aboriginal and non-Aboriginal people alike. However, today’s activists and academics smear it as racist in order to further their own undemocratic agenda.
4/ Yes: Recognition in the Constitution would protect against the future loss of Australia’s unique indigenous cultures, which are a vital part of our national identity. Recognition will help improve Indigenous health and well being.
No: Constitutional change can do little to preserve cultures. To survive, cultures need to be lived by real people, not written in a document few will ever read. In any case, the traditional high culture of Aboriginal society died out in the southern half of Australia before the end of the nineteenth century, and had been abandoned by Aboriginal people in central and northern Australia by the end of the Second World War. The dances, ceremonies and garments we see today are all recent inventions, with no genuine connection to the traditional high culture.
There is no credible empirical evidence that mentioning Aborigines in the Constitution would improve their health. The claim is speculation by a lobby group of psychiatrists, who claim it would improve Aboriginal self-esteem. The gesture would be largely irrelevant to the 80 per cent of Aboriginal people who are now well integrated into mainstream Australia, mostly in the suburbs of the major cities and larger regional centres. And it would go completely unnoticed in the emergency departments of hospitals in central and northern Australia where, because of the failed policy of isolating indigenous people in remote communities, Aboriginal women and child victims of Aboriginal violence and sexual abuse are grossly over-represented.
5/ Yes: A successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution would be an uplifting achievement that unites Australians.
No: It would divide Australians, not unite us. The intention of Aboriginal activists for the past forty years has been to gain sovereignty and self-determination under their own laws and governments. They regard constitutional change not as the fulfilment of their demands but simply one more step in the “unfinished business” of segregating themselves from the Australian nation, which they regard as a vehicle of colonial oppression. After they establish their Aboriginal Voice, their next objective has been openly discussed in their own literature, but rarely reported in the mainstream media. It is to create independent black states linked only to Australia by treaties. They will be funded by rents, taxes and reparations on Australian governments and, in particular, on our mining, agricultural, pastoral and timber industries.
Eligibility for membership of each of these independent states would be restricted to people of Aboriginal descent — in other words, these states would be based on race. This would inevitably generate widespread resentment among non-Aboriginal Australians, who would have to pay for it all. A constitutional amendment to give Aboriginal people privileges unavailable to other Australians would not make our nation complete. It would divide it permanently.
This is an updated version of the Preface to Keith Windschuttle’s book The Break-up of Australia: The Real Agenda Behind Aboriginal Recognition, Quadrant Books, 2016