Caught in a racial trap

Thursday, 26 January 2012 

We must proceed cautiously given the state of our citizens’ understanding of these issues.

Marcia Langton

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.

Word games

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

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68 responses to “Caught in a racial trap”

  1. Dr_Tad on 10th February 2012 1:52 pm


    If pre-1788 Aboriginal society had been feudal (or some other form of class society), then the land-as-property argument would make sense. But it wasn’t; it was a hunter-gatherer society where the concept of “property” would have made no sense because there were no antagonistic class relations of any significance.

    Thus, the alienation of the land didn’t have to proceed in terms of property rights in the same way that we might expect if the colonists had come face to face with a class society with established property forms.

    This is why “common law” doesn’t apply, except as something imposed in retrospect by the Australian state. The management of the Indigenous question has always rested on the state’s stance towards this group of people and their ancestors, not some preexisting group-bound property right that was unfairly supplanted or destroyed post-1788 (and therefore potentially rectified by a Mabo-style decision).

    I agree with TPS that the white Left (for want of a better descriptor) has mostly failed to either provide a useful analysis or practice that could more seriously challenge Indigenous oppression. I suspect part of that is a result of the way that the state and ruling class have consciously stamped on any signs of serious integration of Aboriginal people into the working class.

    This was the sick irony of “assimilation”; it demanded conformity with the dominant ideologies and cultural practices while simultaneously excluding Blacks from central aspects of formal equality within society as workers. That is, telling them to stop being a racial group while at the same time ensuring that in practice they were discriminated against as a racial group, thereby materially reinforcing their “difference”.

    Anyhow, that’s my take.

  2. The Piping Shrike on 10th February 2012 9:38 pm

    To me, any decision that requires the re-writing of the events of 200 years ago, raises the question of descent and race when looking at the implications for those living today – and there the problems start.

  3. Jeff on 11th February 2012 11:34 am

    Aboriginal identity is not defined by ‘descent’ or ‘race’.
    And the problem started 224 years ago.

  4. The Piping Shrike on 11th February 2012 1:12 pm

    The problems of today, which is all I am concerned about, starts by slapping on what happened 224 years ago to explain the inequality of today.

    I think we have covered this “non-racial” definition of Aboriginal, and it’s just word games.

  5. Jeff on 11th February 2012 3:18 pm

    Can you please show how it’s just ‘word games’?
    You seem wedded to the idea of ‘race’, or am I misreading you?

    And really, ‘the problems of today’ … from you, who so carefully share with us the historical roots of things. How else do you explain the ‘inequality of today’? It didn’t spring fully formed from the head of Zeus.

  6. The Piping Shrike on 11th February 2012 9:55 pm

    Because obviously someone of full European descent is not legally, politically or socially described as Aborigine. I don’t know what more I can say above the 1 Feb. Clearly you support land rights and you are trying to find a non-racial definition of Aborigine to maintain it. Good luck.

    Finally there is a world of difference between showing the way we got here (and the intention behind them) and saying the past determines what happens now. Funnily enough, while acknowledging the importance of history, the fact that the land rights system came out of modifying a reserve system designed to oppress indigenous people and with close associations to apartheid, as I have described, is ignored. I understand why.

    The fact is that we could do away with the racial provisions in the Constitution in a flash, there is certainly support for it. But we won’t because it suits the left and the right to maintain the land rights system. The wriggling around by the Constitution committee to do so without the racial bit is just word games.

  7. Jeff on 11th February 2012 11:08 pm

    I’m not trying to find a non-racial definition, there’s a usable one available but you’re evading speaking to it. That would give you something more to say.

    You decry the existing system of land rights as somehow unworthy because it arises from previous oppressive practices … ought the clans who have established claims renounce them on principle?

    I don’t know what suits the ‘left’ or the ‘right’, but I reckon aboriginal australians don’t favour abandoning land rights.

  8. The Piping Shrike on 11th February 2012 11:54 pm

    Land rights have never been about what aboriginies want.

    You’re saying Aboriginal identity is not defined by ‘descent’ or ‘race’ and now you’re saying you’re not trying to find a non-racial definition. I can’t follow this.

  9. Jeff on 12th February 2012 9:44 am

    ” Land rights have never been about what aboriginies want.”
    … if you say so.
    That doesn’t mean they don’t want land rights.

    ” I can’t follow this.” … clearly.
    Race is not a scientifically sustainable idea, it ought be abandoned.
    A non-racial definition of aboriginally exists in australian law. And it’s a good one. I’m pasting from back up the thread:
    ” The first of Justice Brennan’s 3 criteria, ‘biological descent’, was found in WA v Ward (2000) to not imply strict patrilineal descent, and the administrative definition, ‘Aboriginal descent’, was found by Justice Merkel in Shaw v Wolf (1998) to not need to be proved ‘according to any strict legal standard’, it being;
    ” a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.”
    I’ve previously mentioned two prominent examples, Mudrooroo and Roberta Sykes.

  10. Riccardo on 12th February 2012 3:56 pm

    I think many of you are asking an imported political and legal system to deliver something its not capable of. The high court in Mabo pointed out the courts are unable to find against Australian sovereignty. Maybe an international court could, if a plaintiff party could be found.

    Any concept of Land Rights has to be invented, and remember if, as Dr tad mistakenly says, they were hunter gatherers (not correct in Mabo, where the islanders grow food and possess plots of land)’ then any such right is about keeping people (non hunter gatherers) out of a piece of land.

    I think this is all silly. You can have a colour blind constitution if you want, but your constitution is the problem, not the colour issue. Because it is a constitution for an entity called Australia, which is fundamentally a racist construct and cant ever be otherwise. History matters, which is why Balkan people fight over it. The story reinforces the myth. It reinforcee the law, which becomes the right to exclude others.

    Aotearoa is a useful comparator because the history worked out different, the dialogue is different and the results different, although Maori still got the rough end of the stick, because notwithstanding their resistance wnd treaty, they were invaded in an undeclared war, and lost their self determination, their lands and cultute, and only the sovereign conceding the need to follow the treaty ha this come back in part.

  11. Dr_Tad on 12th February 2012 4:18 pm

    Jeff, I think the problem is this:

    Property rights pass by hereditary descent. Existing land rights start from this principle also, precisely because they seek to ameliorate the post-1788 alienation of land then lived on by Indigenous people. Thus, no matter how offensive and unscientific we find race as a category, how else can Aboriginal land rights be treated?

    One presumes that ethnic “identity”, now popular for making other claims, might be sufficient for making bourgeois property claims (but most also stop white people like me claiming to be Indigenous & demanding land on the same basis as people who are Indigenous by biology, i.e. by a classically racial definition).

    However, even apparently non-biological identity claims (of the sort argued over in the Bolt case) are really derived from a racial biological underpinning. Those legal definitions you quote, while trying to modernize the definition of race, really just give it a non-biological gloss. Both types of definition remain essentialist and, most importantly, adjudicated on and imposed by the state.

  12. Dr_Tad on 12th February 2012 4:23 pm


    I withdraw “hunter-gatherer” but don’t withdraw the characterization of pre-1788 society as pre-class society.

    But my point is only to say that you can’t make restitution for land alienation post 1788 through retrospective imposition of a property form. Many people think you can, through a mechanism such as found in Mabo.

  13. Jeff on 12th February 2012 11:42 pm

    Dr Tad, Riccardo
    Thank you.
    The salient point from both of you for me is Riccardo’s reminder that balkan people are still fighting over this stuff.
    This is why analogies to devolution in GB are also relevant.
    The issue will not go away.
    It’s not about property. It’s about identity and self determination.

  14. The Piping Shrike on 13th February 2012 1:02 pm

    I find it on indigenous issues that I most disagree with commenters – which is fine since it’s the point of the blog (and the comments section).

    I find this reference to 1788 and the past as missing the point. History does not bear down on the current situation as some metaphysical presence. Rather it is used by social forces to mystify what is going on now. Just as the power plays of a disintegrating Communist bureaucracy in Yugoslavia (and unhelpful interventions by western powers) were mystified by explaining them through supposedly ancient rivalries that mysteriously had little bearing in the prior decades of a united Yugoslavia, so the wrongs of 1788 and the appeals to the spiritual nature of indigenous culture are used to mystify what is a current political problem of the Australian state.

    I know land rights supporters like Jeff think it irrelevant, but the land rights arrangement was never designed with the spiritual needs, or indeed any needs of the aborigines in mind. Rather it was an accommodation made by both sides of the political class to a discriminatory arrangement that was becoming increasingly out of step with international needs for reason I have described. That arrangement has now been unravelling because the political order that made it is now also unravelling.

    That’s why it’s no coincidence that the biggest attempt to shake-up that arrangement, the NT intervention and the apology, was made at the time the broader post-war political order was also being rearranged by Howard and Rudd. The problem was that the political class could attack it, because obviously it was deeply flawed, but they can’t replace it. So instead we have a committee to disguise a racial arrangement through word games what they can’t get rid of in reality.

    This has pretty well nothing to do with indigenous self-determination. They have little impact on the political process, which is not surprising given their “progressive friends” are not only indifferent to what the land right arrangement is about, but the utterly miserable result it has produced after four decades. This is all about the ”identity and self-determination” of the Australian state and the Australian political class, not indigenous people. They are just collateral damage from the whole tortuous process.

  15. Riccardo on 13th February 2012 2:13 pm

    But TPS, why do you then identify Australia itself as legitimate?

    It’s as if you see the political class as lost and unwinding, but the Australian nation-state entity as in fine fiddle.

    I don’t. It was built on quicksand.

    1788 or not, you don’t set up a ‘country’ with all the legal chicanery and hope for the best.

    Nation states have fundamentals that must be adhered to:

    sovereignty and control exercised and recognised, common bonds of language, history and myth, defined borders, effective institutions of government and power sharing.

    The institutional stuff is holding but the socio-cultural stuff is changing quickly on the back of the economic changes and the whole concept of Australia is starting to look silly, which is why the Left keep trying to bury it and the Right look like a circus parody of it.

    No nation state has yet been founded that didn’t trample on someone’s rights because there is no other way.

    The concept is racist, exclusivist in a range of dimensions from religion to language to social order.

    If anything, as you have pointed out, the UK and USA have their very deep taproots into monarchy, war, religion, landedness, that cover as a figleaf for why one group of people are able to boss another.

    We don’t have that in Australia, which is why we’ve relied on other mechanisms to bind a nation state and these are now failing. Our attempts at myth are pathetic, kitsch things about Gallipoli or convicts and rubbish like that. And flying thousands of little flags on car aerials doesn’t make a nation.

  16. Riccardo on 13th February 2012 2:25 pm

    It’s very refreshing when you are in HK, as I am fairly often:

    -no concept of nation state, only “right of abode” which is really just “permission to work” which is only a legal concept

    -a mongrel system of non-democracy that no-one regards as legitimate.

    -half the population hold passports of other (non-Chinese) countries and many of them allow votes to be cast at their consulates

    -the actual sovereign (the People’s Republic of China) is widely discredited within the territory

    -the only airport is international, so people are really conscious that there is their city, and the rest of the world, and going elsewhere in China is somewhat indifferent to going to any other place.

    No Hong Kong person would confuse the concepts of Government and Nation, nor confuse the concepts of residency and belonging, nor the concepts of citizenship and participation.

  17. Jeff on 13th February 2012 2:43 pm

    You are whistling in the dark about ‘decades of united Yugoslavia’ and the ethnic components of its disintegration.
    You do all the commenters on here a disservice if you include us as mystifying anything. History does shape the current situation, as you like to point out.
    The current land rights arrangement is not something set 40 years ago. It started before then, has changed since and continues to change. It can’t be said to have produced a result, miserable or otherwise.
    Yes, it is about the identity of the Australian state. Indigenous people are not going away. They’re a constant reminder of the fragility and falsehoods of that identity. So of course it’s about them as well.

  18. Riccardo on 18th February 2012 11:42 am

    Also noone seriously believes in Yugoslavia. Yugoslavia was Tito. Personified and made manifest in one man. Then in Milosevic. Milosevic carried out the threats that Tito implied, be unified or else.

    Yugoslavia didnt fall apart into random configurations, but int pre-existing nation states. Europe has a habit of that, of itself being a layer ontop of nation states, but these nation statesa themselves being layers on top of other nation states and so it goes. Identify is very real.

    Australia stuggles to impose identiy, and looks very clumsy when it does. Hence the rock bands playing at Anzac Cove. Hard to imagine Milosevic or Tito or one of them turning up to one of their solemn grievance engendering ceremonies for a war 500 years ago with rock bands playing.

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