This article was first published at New Matilda.
For those who think that Indigenous rights issues generally split people along Left/Right political lines, the stoush within the conservative camp between influential Herald-Sun columnist and blogger Andrew Bolt and The Australian over “Recognition” must be confusing. Yet for months now Bolt and the Murdoch-owned broadsheet have been waging war on each other, with personal vitriol and more-or-less open accusations of racism being thrown about.
To get a sense of The Australian’s determination to support the “Recognise” push, and its campaign against Bolt’s dissenting position, it is worth reading this summary by Bolt supporter Geoffrey Luck in Quadrant.
On the Left there has been very little discussion about what this might mean, apart from delight at seeing the Right divided. In this article I want to remedy this deficit by spelling out the issues that have split the Right, but which remain poorly understood on the Left. This will require going into some detail about Constitutional matters, in particular because one of the key aspects of the debate over Constitutional Recognition is how so many commentators, advocates and critics selectively present or paper over the substance of either the current Constitutional framework or the proposed changes in order to push their case — and often both.
Perhaps the most astounding such intervention has been from Marcia Langton, a strong advocate of the official “Recognise” Recognition process, in which she warned that if there is a publicly funded “no” case put to the people, the referendum will be defeated. This despite opinion surveys (see here and here) indicating a large majority of people support ending racial discrimination and for some kind of small-r recognition of Indigenous people in the Constitution.
The fact that the changes are generally summarised under the term “recognition” is misleading, because the status quo and proposed changes are about much more than an acknowledgement of the role Indigenous people have played (the “poetry and symbolism” that Noel Pearson criticises as secondary to more substantive issues). What they really hinge on is how Constitutional backing for racial discrimination can be rewritten to rid it of discredited racial concepts.
Simply put, Constitutionally-speaking, Australia today is a racial state.
So much so that respected Constitutional law expert George Williams penned a 2012 article entitled “Removing racism from Australia’s Constitutional DNA”. But, as I hope to show, the most prominent remedies for this state of affairs seek to retain this racial framework while using different terminology to make it sound palatable.
Noel Pearson ally Damien Freeman has gotten closer than most commentators to why significant sections of the political establishment in Australia, including many on the Right, are so keen to achieve Constitutional change. It has nothing to do with removing racial distinctions from the Constitution, and everything to do with the state managing its Indigenous problem:
Some people argue that the race power could be removed and not replaced. But this is not possible. Without a replacement power, the ability to amend legislation such as the Native Title Act is put into doubt.
Not replacing the race power would also remove the commonwealth’s power to make laws with respect to Aboriginal and Torres Strait Islander people — which was the achievement of 1967.
Indigenous Australians stand in a special relationship to the Australian state, and Australia has a responsibility to find an appropriate mechanism for managing this special relationship.
Or, as Patricia Karvelas has put it, this is about “reconstruction of the race power”, not its abolition. That is, the debate is all about how the state manages the destabilising consequences to itself of the historic dispossession on which it was constituted.
A Constitution defined by race
Against those like Bolt who say that Australia is a country where racial distinctions have never operated, and that Recognition would introduce legally sanctioned racial divisions, the fact is that since Federation in 1901 there have been specific racial clauses in the Constitution. Prior to the celebrated 1967 referendum there were in fact three sections mentioning race:
- 25. Provisions as to races disqualified from voting 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.
- 51. Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
- (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws
- 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
The 1967 referendum removed S127 entirely and amended S51 (xxvi) to remove the words “other than the aboriginal race in any State”.
S25 was not touched, but it has been debated if it ever had any practical effect. Today no respected legal expert thinks its removal will cause any problems, and so this is an uncontentious part of the Recognition process.
S51 (xxvi) is another kettle of fish altogether. Pre-1967 it was important for two reasons. Its primary aim was to allow the Commonwealth government to act against certain foreign (read: non-white or Asian) races, including denial of entry into Australia, under what was known as “White Australia”. This was the result of the individual colonies wanting to keep the anti-Chinese legislation they had introduced in the late 1800s. Indeed, so keen were the eastern colonies on this that they virtually blackmailed South Australia into expelling the large Chinese population in its northern territory as a condition of political Federation, thereby destroying a dynamic Darwin economy.
By specifically excluding “the aboriginal race”, S51 (xxvi) also prevented the Commonwealth from overriding individual states’ own powers to manage the Indigenous “problem”.
Contrary to mainstream representations, usually repeated uncritically even by radical Leftists, the 1967 referendum was not actually about getting rid of racial discrimination against Indigenous people in the Constitution. Instead, it brought them under the same “race power” that had been the basis of White Australia and its associated horrors.
Now, the “race power” can be used as the underpinning of all kinds of racially based legislation. Whether such laws are “good” or “bad” is in the eye of the beholder — or the High Court judge making a ruling.
Because a popular mood for ending racism in the Constitution was a big feature of 1967, many people presumed that the amended S51 (xxvi) could only allow laws for the benefit of various racial groups. Most legal experts believe that a whole series of Commonwealth laws that lock in special rights for Indigenous people — such as native title laws and some laws relating to protection of culture — depend on the race power.
But the race power is not limited to benefiting Indigenous people. For example, the Howard government’s notorious Hindmarsh Island Bridge Act (1997) discriminated against South Australia’s Ngarrindjeri people in order to override their objections to a bridge being built on their land. A clear majority of the High Court at the time agreed that it could do so because it was backed by the race power. It should be no surprise the judges decided this: 51 (xxvi) was first inserted to allow laws discriminating against Asian races, and no positive vibes from 1967 can override this.
So when Bolt and others on the Right claim that Australia currently has a race-blind Constitution, it is the most egregious of lies.
A race power by another name is still a race power
Where Bolt is correct, however, and what most Recognition advocates tend to talk around or evade, is that the main proposals for Constitutional change seek to create a race power under a sanitised, post-racial name. The conundrum they face is that eliminating a reactionary racist power means subjecting legislation that has benefitted at least some Indigenous people to the threat of legal challenge, in particular the limited land rights / native title legislation that is seen as a belated product of the great Black rights struggles of the 1960s and 1970s.
The main proposal that came from the government-appointed Expert Panel on the question was to remove S51 (xxvi), and add a new section:
- 51A. Recognition of Aboriginal and Torres Strait Islander peoples
- 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 government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
The claim that this represents a “non-racial” Indigenous power is immediately contradicted by the fact that it is only through being racially “Aboriginal and Torres Strait Islander” that any kind of “continuity” from before 1788 can be present today (because no-one who was alive in 1788 is still alive to claim such a relationship directly).
Thus, the proposed change removes the race power for all non-Anglo races and reinstates it especially for Indigenous people, although under a more acceptable name.
Some on the Right baulk at the S51A proposal because it implies that perhaps only positive discrimination could be carried out under the new race power. But again there is nothing to guarantee this, because what constitutes the “advancement” of Indigenous people is often hotly contested. For example, the openly racist NT Intervention, which also rests on the current race power, is lauded by prominent Indigenous leaders like Marcia Langton as being in the best interests of their people.
Nevertheless, a desire to address anxiety on the Right about special privileges for Blacks alongside a wish to preserve what has been instituted under the existing race power, has led Constitutional law expert Anne Twomey to propose new powers to enact specific laws that are now covered by the race power; e.g. on land rights. However, such a proposal still relies on a racial distinction to identify which people those laws will affect, and so just reinvents the same problem it is trying to solve in another guise.
Built in protections?
The Expert Panel also made other recommendations that go too far for some supporters of Constitutional change, including Tony Abbott. One is S127A, which is little more than “poetry and symbolism” recognising the importance of Aboriginal languages.
However, the proposed S116A prohibits laws that “discriminate on the grounds of race, colour or ethnic or national origin”. The Right opposes it because of a fear of “judicial activism” against racist laws. But even the proposed S116A has a second clause that allows legal discrimination “for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group”. It would have to, since the new S51A is effectively framed as “positive” racial discrimination by retaining Indigenous people’s separate and unequal status. Therefore, like S51A, it is a very limited protection against the racism that will persist within the Constitution.
It is very unlikely that either S116A or S127A will end up getting to a referendum. But what to do about the “race power”, always the central issue in this push, is the question has caused so much worry within the Right.
Missing in action: Equal rights and social progress
The ultimate problem for supporters of Native Title and land rights is that those legal achievements — in their legislative form (i.e. the Native Title Act ) — rest on racist Constitutional powers. That such a settlement is widely accepted by the Left is a sign that rather than fight for legal and political equality between races, most progressives accept the need for separate and unequal treatment of Australia’s most oppressed people, on racial grounds.
Today there is much talk about “closing the gap”, precisely because there is deep racial inequality in our society, yet arguing for substantive equality is hampered by a commitment to a type of separatism. Maintaining a racial Constitution as a guarantee of rights rest on the naïve idea that the Australian state — which has been, along with its colonial predecessors, the most powerful and systematic oppressor of Indigenous people for the last 227 years — would turn on a dime and use a power to treat Indigenous people differently to other Australians in a way that reversed oppression. At best it would simply administer discrimination and disadvantage differently.
Indeed, while Native Title laws have undoubtedly helped a minority of Indigenous people gain some political, cultural and economic benefits, there is little evidence of overall improvement in the social position of Indigenous people as a whole. The gap is not being closed. This should not be surprising as these laws are effectively property-based. In some cases they have led to the empowerment of certain people — those in prime negotiating positions over access to land by corporate interests — and therefore exacerbated class divisions among Blacks. Such processes are simply how property rights work in a modern capitalist society. It is the kind of logic that has been taken to its logical extreme by “Freedom Commissioner” Tim Wilson, who told a meeting of senior Aboriginal leaders:
Property rights are actually the forgotten human right. Without property rights, you don’t get security, you don’t get people being able to materialise the efforts of their labour, and in the end, without property rights you simply don’t have economic development.
Wilson immediately gained the backing of Noel Pearson, the Indigenous leader who has probably been most committed to the creation of a government-sponsored Black capitalist strategy. But notions of taking the issue of Black rights further down this social cul-de-sac have stalled in the current climate.
While the Labour Party and Greens have uncritically supported the Expert Panel recommendations, there is another position that has been put in various forms on the Left. This is that the whole Recognition push is a distraction from the “real” issues. These commentators and activists correctly point out the lack of social advancement that a “yes” vote could deliver for Indigenous people, and that many of the same political players who support Recognition also support record levels of child removal, the NT Intervention and the closure of remote communities. Some activists talk about “sovereignty” as the real issue. There have also been denunciations of the return of what are claimed to be “assimilationist” policies.
It is my view that these arguments are not a plausible response to what is happening. Firstly, there is no evidence of a serious push to assimilate Aboriginal people. Quite the opposite. None of the main players in the Recognition debate want an end to separate and unequal treatment of Indigenous people by the state (even if some, like Bolt, might falsely claim that Australia currently ignores racial distinctions). Secondly, any talk of Indigenous sovereignty or a Treaty (or even Noel Pearson’s pathetic suggestion for an elected Indigenous quasi-Parliament) simply reopens the idea that there has to be a racial split at the level of the Australian state for Indigenous people to gain social progress. It is an implicit repudiation of a strategy of social struggle for not just legal equality, but social emancipation.
But most importantly, by not addressing the substance of the Recognition debate, the Left leaves the issue of legal and political equality to unpleasant right-wingers like Bolt, who have no interest in improving the substantive social position of Aboriginal people. The fact that the greatest “gains” of the social struggles of the 1960s and 1970s are based in maintaining a racial state should be a cause for a deeper rethinking of what kind of strategy can win qualitative improvements in the position of Aboriginal people, and more fundamentally challenge their oppression. Unfortunately, it seems that much as the Right has to obscure the facts about race and the Australian state in its debates on the issue, the Left is so tied to its past political agendas that it cannot clarify much either. Yet clarity on these issues must surely be the starting point of any serious strategy for liberation.