For next Australia Day

Tuesday, 27 January 2009 

Given the way some fell over themselves to denounce Mick Dodson’s call for a review of the date for Australia Day, you wouldn’t think Ali Moore’s interview of him last night would have been such a plodding affair, where she seemed to be struggling to get any opinion out of him at all. But never try to stop politicians and right-wing cultural warriors like Henderson and Albrechtsen passing an opportunity to have another run through of one of their favourite cultural/history wars.

Of course all this hoo-hah about moving sacred Australia Day is just silly, since for a good part of the nation’s history that was exactly what people did. Australia Day was not quite special enough that it would be allowed to spoil what used to be the last long weekend before workers went back after the summer holidays. It was only in the Keating years that we began trailing the 26th around the week, helped by sickies to fill in the gap.

What would seem a terribly dismissive treatment of a national day to a right-wing Frenchmen or American was for a simple reason. Unlike in France or the US, it never commemorated something the right was that proud about. Back in the days when English ties meant something, the dumping of their first boat-load of rejects was always a bit awkward for them, but other than Empire Day, no other day would quite do.

The right’s rehabilitation of Australia Day is what this mini-kerfuffle is about and why Dodson’s remarks were just too good to pass up. Albrechtsen thinks it was about celebrating the beginning of ‘parliamentary democracy’, a rather unusual view of a penal colony. As usual, Henderson’s attempt is more subtle (and educated). He starts with noting that Australia Day has become more popular with the young. Bringing youth in onto his side is a wonderfully sly Hendersonian trick, a way of implying before starting the argument, that it has already been won. He has also used the same tactic to defend Anzac Day and raises not only the question that if the argument is already won, why bother pursuing it, but the more important one, are he and the nation’s youth talking about the same thing?

Probably not. Henderson defined his idea of patriotism in an article a few years ago on the war in Iraq, saying that it differed from nationalism in that it was not to do with taking power. Australia, he says, has never been nationalistic as Australians have never attempted to impose power as a nation. Patriotism, however, is rallying to the cause in Iraq.

It is certainly true that running over the other side of the world to carve up the Ottoman Empire into British colonies was more for Empire interests, than necessarily Australian, which is why the majority of the population here voted against conscription to join the ANZAC venture at the time. But if opposing the war in Iraq when troops were under fire was only the preserve of the unpatriotic ‘intelligentsia’, as Henderson claimed, then either Australia is one of the most intellectual societies since classical Greece or one of the least patriotic. When the coalition troops really started to come under fire after the regime collapsed, the Iraq war was consistently opposed by the majority of the population, especially the young.

What of course Henderson is pointing to is not a rise of patriotism or a revival of respect for the exploits of Australian soldiers defending Empire ninety years ago but the depoliticising of it. It means overseas wars are fine as long as the commitment is token and no Australians get killed. It has turned issues like ANZAC from a left-right argy-bargy about overseas military adventures into the fairly empty media spectacle it is today. However, what allows Henderson to mobilise young flag-wavers to a worn out right agenda is the fact that the left-wing side of it is going the same way. It is what gives the argument of the rest of his article on Dodson, which takes the wind out of the old indigenous agenda, its bite.

Listening to Mick Dodson last night you get a sense of where the old indigenous politics is going – nowhere. The problem comes on another topic raised by Ali Moore last night, presumably to get some fireworks out of the interview, the constitution. He notes that Rudd seems to be non-committal on changing the preamble but then says constitutional change could go further:

Well I don’t know if many people know that there’s an article that is a section in the constitution, section 27, which is blatantly racially discriminatory, it allows the states to ban people from voting on the basis of race. Why do we need something like that in our constitution in this modern age? This is 2009, why don’t we get rid of that?

This blogger hesitates to correct an ANU Professor, but Dodson is probably talking about Section 25, not 27, that says:

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 the race resident in that State shall not be counted.

Anyway, he is right that a nod for the states to deny someone the vote on the basis of race is wrong and should be got rid of, even if it has not been used since Queensland lifted its ban in 1965. But what does he think about that other racially based clause in the constitution that still is? Namely, section 51 (xxvi) that states:

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

This, of course, is the section in the constitution that was changed in the 1967 referendum. Until then it explicitly excluded the Commonwealth from making laws especially relating to indigenous people. Contrary to how it is often portrayed, the Referendum didn’t remove discrimination from the Constitution, it broadened it to include indigenous people and allow laws to be made specifically relating to them.

While posed as allowing the federal government to over-ride discrimination in the states, something that Whitlam tried to do in an Act in 1975 aimed at Queensland, but was never used, the main purpose of these so-called ‘race powers’ was to bring the whole system of land rights and special treatment of indigenous people to the level of national politics. It provided the legal and constitutional basis for the land rights compromise of the last forty years, the policy of separate development on racial lines. And separate they have been, judging by the normal standards that society would like to measure itself, education, health, infant mortality.

That separate development has rested on the biggest cultural war of all, pursued by activists like Mick Dodson and which makes Gerrard’s and Albrechtsen’s attempts to recreate a right agenda that has never been, the small-time moaning it is. It is the idea of separate cultural development that may have seen to be promoting the interests of indigenous people but bit back viciously last year in spectacular fashion when it enabled stories to be believed, without proof, about goings ons in NT communities that would have been greeted with incredulity if they happened in a Sydney suburb. It led to the imposition of restrictions on welfare along racial lines that showed what racial laws can give with one hand, it can take with the other.

Everyone wants to be practical these days on the indigenous question, some want to play around with the constitution. Here’s a chance to do both: instead of making even more racially based sections of the constitution with a preamble, how about marking next Australia Day by getting rid of the ones we’ve got?

Posted by The Piping Shrike on Tuesday, 27 January 2009.

Filed under The Australian state

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5 responses to “For next Australia Day”

  1. Graeme on 27th January 2009 11:42 am

    Prof Dodson, 2009’s Highest Aussie, might be right to call for an update of the Constitution.

    But section 25 was progressive, not racist. It served to avoid any state which had a racial franchise from ‘earning’ seats in Federal Parliament based on those (state parliamentary) disenfranchised residents. This was potentially important at the first election/s, when the State franchises defined the federal vote.

    In truth, this was probably not directed at Indigenous people, since under section 127 of the pre-67 Constitution, they weren’t counted in the census and hence in ‘the people’ for the purposes of apportioning federal seats. But even section 127 wasn’t explicitly racist: it was about ensuring that states like WA with large indigenous populations living effectively in an entirely separate, non-western economy, were not overcompensated in transfer payments.

    The High Court (a conservative mob at the moment) has recently definitively said that the Constitution doesn’t permit a racial franchise. That is, ‘the people’ is read inclusively.

  2. Riccardo on 27th January 2009 4:02 pm

    Given that biologists are saying race is not a biological thing, can only be shown sociologically, the term might wither and die within the constitution of its own accord.

    But heaven help Australia might one day have a fascist government, I would not want this weapon added to their arsenal. It should be removed. Positive and negative discrimination. Social differences and geographic disadvantage should be enough grounds for intervention if intervention is required.

  3. Riccardo on 27th January 2009 4:04 pm

    Remember, items can die within the Consitution through interpretation or disuse, for example, the Interstate Commission, or the use of Australian law on British ships.

  4. The Piping Shrike on 27th January 2009 5:39 pm

    Hi Graeme, I agree that Sn 25 was more to allow the states that had universal franchise to accomodate to those with restricted franchises to allow Federation. Whether you would call such a squalid compromise ‘progressive’, I’m not sure, but certainly these days it looks redundant.

    Which makes it all the more surprising that that was the part highlighted by Dodson, rather than the more obvious one that allows the government to make racially discriminatory laws, 51 (xxvi). No doubt it was because it was supposed to allow for ‘positive’ discrimination – that didn’t turn out that positive for the last forty years and certainly ain’t positive now.

    I think it’s time those like Dodson who claim to support indigenous rights had a re-think.

  5. DM on 31st January 2009 1:17 am

    On the subject of Australia Day, I am truly bewildered that we are not celebrating the 1st of January (Federation day) as Australia Day because it is on that day that Australia became a nation in the first place. Instead we mindlessly celebrate the 26th Jan of 1788, the day the British set up s penal colony in Botany Bay! It seems to me that we are not taking this ‘nation thing’ seriously down here. As for Dodson’s remark, I would really like to know what alternative date he has in mind for Australia Day. We’ve heard so much critique from the postmodern Left in the last few decades, yet when it comes to alternatives they somehow never have much to say.

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