Thursday, 26 January 2012
We must proceed cautiously given the state of our citizens’ understanding of these issues.
How do you change racial provisions in the Constitution when the entire infrastructure of land rights is based on it? That’s the real problem that those who are now looking to redraft the Constitution are grappling with behind the smokescreen of drawing up a Preamble.
Talking about changing the Constitution is becoming about as much a ritual to the start of the political year as New Year resolutions. The latest round was kicked off by this month’s release of the report from the You, Me, Unity Committee advising on Constitutional changes for recognising Aboriginal and Torres Strait islander peoples. In addition to drawing up a Preamble, the committee also reviewed the existing Constitution, especially the amendments made in the 1967 referendum.
The misunderstood referendum
Of all the referendums since federation to change the Constitution, the 1967 referendum must easily be the most widely misunderstood. Some think it gave Aborigines the vote. It did not. Some think it gave Aborigines citizenship. It did not. Both of these had been granted before 1967. The 1967 referendum was at least seen to have removed discrimination against Aboriginal people. It certainly didn’t do that either.
That there is such a widespread misconception about the 1967 referendum is a sure sign that there was something awkward about it. A constitution for a normal modern democracy would be expected to be blind when it comes to race and make laws that would apply regardless of race or skin colour. Yet Australia’s does the reverse. There, plopped right in the middle of the constitution, is section 51 (xxvi), the so-called ‘race powers’, which specifically gives the Federal Government the ability to make special laws that can be applied only to certain people purely on the grounds of their race.
As would be expected, the reasons for putting these powers in the Constitution were mostly discriminatory. Edmund Barton, Australia’s first Prime Minster, was fairly blunt about their role in the run up to Federation, saying they were necessary so that:
the moment the Commonwealth obtains any legislative power at all, it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.
Australia’s first chief justice, Sir Samuel Griffith, was even blunter:
What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers. … I maintain that no state should be allowed, because the federal parliament did not choose to make a law on the subject, to allow the state to be flooded by such people as I have referred to.
However, until 1967, indigenous people were excluded and any special indigenous laws remained the realm of the states rather than the federal government. In 1967, far from being weakened, these race powers were extended to also include indigenous people at the federal level.
There were several reasons why they had been originally excluded. In the run up to Federation, the states varied widely in their political treatment of indigenous people; from South Australia and New Zealand (in the original Federation discussions) that had given indigenous people the vote, to Queensland and Western Australia where indigenous political representation was either heavily restricted or non-existent. Leaving indigenous relations to the states had one advantage of removing a potential barrier to Federation.
The split between the Federal government handling races from overseas (especially Asian) and leaving indigenous issues to the states also reflected the international/domestic split between federal/state functions that was envisaged as core to Federation at the time.
However, there was a third more subtle reason why the Federal government wanted to avoid the whole indigenous question – it ran counter to a national identity struggling to be created in the sheep paddocks of Queanbeyan. This antagonism was why conditions for indigenous people actually got worse after Federation, with voting rights eroded even in states where they had been granted.
This was supported by the Constitution’s exclusion of indigenous people from the census, which had the effect that even those states that allowed aborigines to vote, would not receive federal funding to reflect it. And it was supplemented immediately after Federation with the Franchise Act of 1902 that prevented Aborigines being on the electoral roll unless they were already on the state roll. So even in South Australia, for example, after the franchise had been extended to all native men and women from 1894, an increasingly restrictive interpretation of the Franchise Act saw indigenous political rights steadily eroded over the first half of the 20th century.
Getting back into step
The situation didn’t change until well after World War II and in the early 1960s leading up to the 1967 referendum. The reason for the changes in Australia were largely the same as to why the UK was dismantling the more overt symbols of Empire and why the US began dismantling racial segregation in the southern states at the same time – overtly racial policies were becoming difficult to defend on an international scale.
They had already been discredited following the 1945 defeat of a certain northern European country that had been rather over-enthusiastic in their application. But a more pressing reason was the difficulty shattered European powers had in regaining their former colonies against national liberation movements in the decades immediately after 1945. While many of the counter-insurgencies, such as Britain and Australia dealing with Malaysian rebels during the 1950s, were being carried under the name of anti-Communism, national liberation movements were claiming, with some success, that this was little more than a cover for old-fashioned racial colonialism.
To neutralise such claims, leading powers made moves both on the international front and at home to improve anti-racial credentials. Menzies brought in full Commonwealth voting for Aborigines in 1962, and the more recalcitrant states followed, with Queensland finally bringing in full franchise in 1965. But in addition, the federal government increasingly needed to respond to international initiatives, such as the 1963 UN declaration against racial discrimination.
As the Constitution then stood, such international initiatives caused two main problems for Australia. First, at a technical level, the inability to make special laws arguably restricted the national government’s ability to deal with international bodies over the indigenous question. But more importantly, an increasingly unfashionable discriminatory stance put Australia in danger of being seriously out of step with international affairs and facing the type of isolation that apartheid South Africa and Rhodesia were starting to experience. As already we know, international isolation was not an option for Australia.
It was inevitable then, that as the treatment of the indigenous population was becoming an international affair, so responsibility for it would have to increasingly pass from the state to federal sphere – and the exclusion of indigenous people from federal “race powers” would have to end.
The question was under which terms. On this score, looking at the series of parliamentary debates in the run up to the 1967 Referendum is revealing.
Discriminatory, but not discriminatory
The issue was first discussed seriously in Federal Parliament, when, a year after the UN Declaration, in 1964, then Labor leader Arthur Calwell put up a bill to include indigenous people under the race powers by deleting the exclusion, as well as including them in the census. As Calwell, and Whitlam seconding made clear, responding to international pressure was a key motivation. Yet while including Aborigines in the census was no problem for the Coalition government, they were less ready to include them under the race powers. Leading the government resistance was the then up-and-coming Attorney General, and future Liberal leader, Billy Snedden.
Snedden’s argument was an interesting one; by including indigenous people under the race powers, and making special laws about them, it would increase the risk of discrimination rather than reduce it. In reality, the government’s argument was probably more likely driven by states rights. But the idea that the race powers were still very much about discrimination and the way Barton originally intended it was illustrated by this revealing, if unedifying, exchange during the debate:
Snedden (LCP): … As I pointed out earlier, such a provision would empower the Commonwealth to make special laws in relation to the aboriginal race. In other words, the constitutional safeguard would be eliminated.
Beazley (ALP): The Commonwealth can make special laws in relation to Chinese.
Snedden (LCP): That is so, and we want to retain that right.
Bryant (ALP): And the English.
Snedden (LCP): I would not regard the English as a special race in this context.
This was three years before the 1967 referendum and the inclusion of indigenous people under the race powers. And yet in 1964, the same race powers, under the same government, were clearly aimed at special discriminatory measures against non-white people.
The fact that what was portrayed as an anti-discriminatory measure was being carried out through what had intended to be, and clearly still were, discriminatory provisions, was to be a bone of contention throughout the next few years as the constitutional changes were discussed. Simply taking out the indigenous exclusion from the race powers would make it possible to introduce special laws that were clearly detrimental to indigenous people. Liberal MP Billy Wentworth tried again in 1966, but this time tackled the possibility of negative “special laws” by making them only “for the advancement of the Aboriginal natives of the Commonwealth of Australia”. It lapsed.
Finally in 1967, a bipartisan agreement was reached, but on much the same terms as those Calwell proposed but rejected by the Coalition in 1964. What had changed its mind since then? One likely reason was the building international pressure; not only with the escalating war in Indochina, but also in the Commonwealth with pressure on Rhodesia for reform coming to a head with Smith declaring UDI from Britain in 1965 and following South Africa out of the Commonwealth. This increased the need for a national response to the indigenous question and the Federal Government having the powers to bring one about.
But also domestically, shape was being given to that national settlement. South Australia was the first state to pass a forerunner of later land rights legislation under the Lands Trust Act in 1965. Land rights was still a difficult position for the Coalition. State rights remained highly contentious for the Coalition, and were a factor in Gorton’s fall in 1971. So the Coalition made little use of the new race powers federally before Whitlam’s arrival in 1972, beyond some tentative moves in the Northern Territory. Nevertheless, there was recognition that international events would require some type of national response.
“Apartheid without the emotional overtones”
Ironically, just as the constitutional changes to tackle anti-discrimination came out of discriminatory provisions, the shape of the national response came out of the very restrictions that were supposed to be addressed. At the time of the 1967 referendum, the movement of most indigenous people was still restricted around an intricate national system of “reserves” under a complex range of boundaries, conditions and definitions of race by full-, half- or quarter-(‘quadroons’) blood that varied from state to state (indeed, one of the motivations for indigenous federal race powers was to harmonise them, rather than necessarily reform them). It was these that also formed the basis for that conditional ownership known today as “land rights”.
The equivocal roots of land rights was reflected in the explicit association at the time of the 1967 referendum with the “land rights” accorded black majorities under the apartheid regimes in South Africa and Rhodesia – such as that made by Beazley Snr (ALP) in the last debate on the constitutional amendments just before the 1967 referendum:
The Commonwealth should have this power because it is the Government which is confronted with the conscience of the world on this issue. I believe that we ought to transform our Aboriginal policies because it is right to do so. I am not speaking about a lot of sentimental policies; I am speaking about policies which are right. There must be some kind of recognition of land rights where people still live in tribal states, for instance. Until last week when the Commonwealth took action in the Northern Territory we were almost the only country in the world which acknowledged no land rights for the original inhabitants.
We have the effrontery to stand here and criticise South Africa. I am no apologist for South Africa, but at least the South Africans acknowledged the ownership of 400,000 square miles of South Africa by the original native inhabitants. We would regard Smith as going entirely berserk in Rhodesia if he acknowledged no native land rights at all. But the position in Australia is that we acknowledge no native land rights whatever.
Such land rights into which the black majorities of southern Africa states were forced were justified on the basis of the need for “apartheid”, or separate cultural development. While obviously racial, they were cloaked in the language of cultural difference. Here, again in the final debate, is another supporter of the referendum changes, the CLP member for the Northern Territory, making clear the link between land rights and apartheid:
I hope we will not confuse ourselves with other words which have come up in relation to the Aboriginal people. If ‘citizenship” is a confusion word and ‘reserve’ is a confusion word, because the Aboriginals do not own the reserves, another confusion word is ‘assimilation’. If an Aboriginal wishes to remain an Aboriginal I hope we are not going to say: ‘Without consulting you we have decided that assimilation is the policy’. Actually the only protagonists of apartheid I have met in Australia are the Aboriginals themselves. I do not say all of them are. ‘Aboriginal’ is another dangerous word and it is one of our words. They do not think of themselves as Aboriginals. They think of themselves as Arunta or Tiwi and all sorts of separate tribes
… Assimilation is our word. Many Aboriginals take it as meaning they are to be bred out. They wish to remain a distinctive people. After all, apartheid is always the policy of the minority race that does not wish to be absorbed. In Australia the minority race that does not want to be absorbed is the people we call the Aboriginals. Some of them desire that their reserves be inviolate, that their way of life be inviolate and they be allowed to continue as a separate community. This is apartheid without the emotional overtones for which we attack South Africa. Here there is no superior race connotation.
The desire of the Aboriginals to be a distinctive people is something we should respect wherever it exists. We should acknowledge the economic basis of such a distinctive existence or in other words that they might have some title to the remaining reserves.
The debates ahead of the 1967 referendum centred around a delicate balancing act: on the one hand appearing to be anti-discriminatory to indigenous people, while at the same time bringing in race specific discriminatory laws for indigenous peoples, as described in the electoral literature at the time:
The purposes of these proposed amendments … are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary.
But at the end of the day, such a policy of separate development on racial lines obviously requires laws based on racial lines. And today, the whole basis of land rights and the system by which the indigenous question is dealt with is still based on racial lines using racial laws, yet done so under the name of non-discrimination. There is not even, as Wentworth wanted, any requirement in such special laws to be beneficial to indigenous people. This is why the 1967 referendum is so widely misunderstood today – the basis of it is so contradictory.
This is not just a legalistic constitutional issue. It is not just the cases where such special powers have been used in a way that was openly detrimental to indigenous people, such as Howard’s Hindmarsh Island Bridge Act of 1997. Nor just the cases where the powers have been claimed to be beneficial, but arguably not, such as suspending welfare payments after the NT intervention. Racial separation is embedded in judicial thinking; such as last year’s Bolt case where Bolt was deemed to be racially discriminatory – but not as in the normal meaning of the word, being detrimental about someone’s racial identity, but in the very questioning of that racial identity. Or, to take a more sordid example, the release in 2007 of men found guilty of raping a 10 year old girl in Aurukun on the basis of different cultural standards.
All of this points to the dilemma faced by those who want to alter the Constitution today. For those given the task to redraft the Constitution, especially those closely associated with the land rights lobby (as many of those consulting the Constitutional committee are), they have a choice: either get rid of the openly racial sections of the Constitution, and therefore undermine the whole basis of indigenous policy and land rights over the last 40 years, or keep them and then have to deal with the their anachronistic and racial basis.
The Committee’s report shows it was well aware of this problem:
It is important that the races power not simply be repealed. An important achievement of the 1967 referendum was to ensure that the Federal Parliament can pass laws for Indigenous peoples in areas like land rights, health and the protection of sacred sites
Actually neither the protection of sacred sites nor health require special racial powers (equal access to health services would be a nice start). We are really just talking about land rights.
So we have the call for indigenous recognition in a preamble. It’s legally meaningless, as two of the committee members proposing it, admitted last week. But it does help to place a garnish on what is a constitutional cow-pat. But as for the Constitution itself? To disguise the racial basis embedded in it, the committee have suggested some clever word play.
First it is to pretend that it is possible for special laws for indigenous people not to be on the grounds of race. The report goes on at length of the problem of racial definitions and categories as belonging to a bygone age (this is true, but it might raise the question of what they think about the whole infrastructure of land rights that is based on it). But then on what basis can special laws be made for indigenous peoples? This will be done not on race but:
because of their unique place in the history of the country and their prior and continuing existence.
This is cute. There is no doubt that the source of the harsh treatment of indigenous (as opposed to other minorities) comes from their particular unique status with regards to the Australian nation state and identity. It is why the “rights v responsibilities” of indigenous activists like Pearson, Langton and the land rights lobby always miss the point, as it ends up making the issue about indigenous behaviour rather than the problem of the Australian state. But that relationship is experienced as a racial one not a political one. However it is dressed up in cultural terms, as the plaintiffs in the Bolt case made clear last year, being indigenous is a racial category of descent and blood, not a political/cultural one of choice.
The argument that “Indigenous and Torres Strait Islanders” is not a racial category is clearly unconvincing. So they have done something extra tricky. In replace of the special race powers, there are now two new additions:
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.
… and this one in a totally different part of the Constitution …
Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
On its own, the last one looks odd. What’s a group? Does it mean protecting the culture of Collingwood supporters? The heritage of the Port Noarlunga Historical Society? On its own, the first is either banal (what is “acknowledging”?) or redundant (presumably the Commonwealth already has powers to make laws for good governance for everyone, as well as indigenous people).
What they look to have proposed is a race provision with no specific powers, and specific powers but with no mention of race. But put them together and we have the race powers back again, but this time only applying to indigenous peoples, not other non-white races as before.
The first problem with this is that we are still left with the question of what constitutes a beneficial law or one that “overcomes advantage”. This is not clear cut. After all, both Marcia Langton, one of the report’s authors, and Noel Pearson who contributed to the report, were supporters of the Intervention, presumably on the basis it overcame disadvantage. But even those that want to continue the system that the committee wants to protect, must surely have to wonder how it can be such an advancement when the result after four decades of its application so clearly is not.
But there may also be a problem of the referendum’s success. It’s unsurprising that in the final, and perhaps most annoying part of the report, of how to sell it to us dumb lot, the committee have emphasised not only the need to keep the clauses together (so the race power hiding in it remains intact) but to keep it simple. But the difficulty that Langton refers to of citizens getting their head around this is not because we are thick, but because of the trickiness of trying to selling a discriminatory provision as its opposite. They did it in 1967, but it might be harder this time round.
Especially as the public seem to want discrimination in the Constitution even less than they did in 1967. In extensive commentary in the report on polling done around the changes, there was only a brief mention to the fact that in a quantitative survey done by Newspoll in November, most surveyed “recognised the need to support Aboriginal and Torres Strait Islander peoples, but saw the singling out of one group of Australians as a ‘stumbling block’.”
Since this was not an option, as it would undermine the legal basis of the land rights system this is all designed to protect, it suggested to the panel “the particular importance of a properly resourced public education and awareness campaign in the lead-up to the referendum.”
It’s unsurprising that the Australian public would want a modern Constitution that doesn’t single out one group for different treatment. It’s also unsurprising that they won’t get it.
Posted by The Piping Shrike on Thursday, 26 January 2012.Filed under Key posts, The Australian state