Some Answers to Some Sensible Questions on Indigenous Recognition

by David Allinson 

As an avid reader of Quadrant, I was pleased to ponder Bill Martin’s sensible questions about Indigenous constitutional recognition last month. His questions were addressed to everybody, “Aborigine or not”who advocates that Indigenous Australians be recognised in a revised Constitution”. 

I am a British migrant and an Australian who advocates for the recognition of Indigenous peoples in our Constitution.  To engage in this important public debate I have recently joined the organisation, Uphold & Recognise. We are a group of conservatives who firmly believe it is possible to uphold the Constitution, while meaningfully recognising Indigenous peoples. 

My answers to Martin’s pertinent questions are as follows. 

Q: Is the Australian Constitution the historical record of the nation, or is it the document prescribing the rules by which Australia is to be governed? 

The Constitution is the rulebook of Australian government. It is not a historical record — though it is obviously a historical document. The Constitution is a practical and pragmatic charter of government. It gives Parliament its powers, but also sets in place rules to restrain that power. The rules contained in the Constitution have served most Australians very well. Our nation has enjoyed peace, prosperity and democratic stability. 

The Constitution has not, however, served Indigenous peoples well. Aboriginal and Torres Strait Islander peoples were not party to the constitutional compact, and had no say in the rules that were devised in relation to their affairs. Accordingly, the Constitution explicitly discriminated against them (e.g. s 127, s51(xxvi)). 

While the 1967 referendum removed some of this exclusion, discriminatory clauses remain. In the past there were many laws and policies, enacted under the Constitution, which have treated Indigenous peoples unfairly and dishonourably. It is therefore understandable that many Indigenous people seek constitutional amendment to ensure they are treated more fairly.

Indigenous constitutional recognition seeks to set in place some fairer constitutional rules in relation to Aboriginal and Torres Strait Islander peoples. This kind of reform is appropriate in a document such as the Constitution, since it is the rulebook that governs important national power relationships. It is the right place for the important relationship between Indigenous people and Australian governments to be made fairer than it has been in the past.

I agree with Mr Martin that it may be illogical to symbolically state the historic fact of Indigenous prior and continuing occupation in what is primarily a rulebook, not a history book. A rulebook is for rules, and we should implement some fairer rules. Symbolic statements of history, however, should happen outside the Constitution. 

Q: Is anyone is (sic) under the illusion that there are some in Australia, or anywhere else for that matter, who are not aware of the fact – who do not “recognise” – that there were Indigenous people living on this continent and its islands when the First Fleet arrived? 

I have heard some people mount spurious pre-settlement theories, but that is not the point. 

Australia, as a nation, has not formally recognised its Indigenous history and heritage. Doing so is important, and would enrich us all. Indigenous peoples lived on this continent for at least 50,000 years before the arrival of the British. Their rich cultures and languages should be celebrated and honoured as part of Australian culture and heritage. 

This can happen in an inspiring Declaration, outside the Constitution, and without risk of unintended legal consequences. It could be a unifying moment for all Australians.  

Noel Pearson argues that we should recognise our ancient Indigenous heritage, our British institutional inheritance, and our multicultural achievement. I agree. We should recognise these things in an Australian Declaration of Recognition.  

I share the enthusiasm of many eminent conservatives, such as Cardinal George Pell, Chris Kenny, Lyle Shelton, Julian Leeser MP and Tim Wilson MP, who make this compelling conservative case for recognition in The Forgotten People: liberal and conservative approaches to constitutional recognition (https://www.mup.com.au/items/164020). 

Q: Is it reasonable to believe that some form of official “recognition” of the fact that there was an Indigenous population on this continent when the First Fleet arrived would in any way improve the lives of Australian Aborigines? (sic)

If constitutional recognition implemented fairer constitutional rules to ensure better policy-making in Indigenous affairs, then it could make a practical difference to Indigenous lives.  

Mr Martin is partly correct. The gains made in land rights alone, while important, have not closed the gap on Indigenous disadvantage. We need a better system for improving outcomes for Indigenous peoples; we need to get better at making effective laws and policy in Indigenous affairs. 

Australian governments should work more constructively with Indigenous peoples when making laws and policies about them. Land rights legislation is one example — these laws should be developed in genuine consultation with Indigenous peoples. This would produce more effective, efficient, and targeted policies and laws.  

In his recent maiden speech to parliament, staunch constitutional conservative, Julian Leeser MP, urged us to “find a constitutional way to make better policy about, and due recognition of Indigenous Australians, while avoiding the downsides of inserting symbolic language into a technical document, which requires interpretation by judges” (https://goo.gl/hI91Sa). 

Such a solution is tenable. I support a modest, practical amendment to the Constitution, to ensure that Indigenous peoples have a voice in policy decisions that have a direct impact on their lives. This would, I believe, improve Indigenous policies and laws, and therefore the lives of Indigenous peoples,  and indeed all Australians. 

Q: How could the “recognition” of one specific group of Australian society not be divisive? 

It is no more divisive to recognise that a person is Indigenous Australian, than it is to recognise that I am British Australian. 

As in every former British colony, Australia’s common law and legislative arrangements recognise some distinct Indigenous rights. Mr Martin mentions land rights legislation, which already recognises a special form of Indigenous property right. This is not divisive: recognition of property rights is a practical necessity. 

Nor is it divisive to say that Indigenous peoples should have a voice — importantly, a non-binding voice — when Parliament makes its laws and policies about their rights. That would be sensible, respectful and honourable. 

The existing constitutional clauses which promote and allow discrimination on the basis of race (ss 25, 51(xxvi)) are, however, divisive. These clauses should be removed, while ensuring Parliament retains its necessary power to legislate with respect to Indigenous matters. 

Q: Are Aborigines (sic) better entitled to regard their culture as extraordinarily special than those of different cultural backgrounds? 

In Australia we are incredibly lucky to possess a rich and ancient Indigenous heritage. We can treasure this heritage alongside, and equally, with our inherited British traditions and our multicultural achievements, as Noel Pearson points out 

Our conceptions of ourselves as Australians are multilayeredIn Australia, I can enjoy Indigenous classical culture in Arnhem Land while also enjoying the stability of British political institutions and the philosophy, poetry and pipe bands of my ancestral homeland, Scotland — before eating dumplings in China Town This is the richness we share as Australians. Equally, Australia’s ancient Indigenous heritage is a crucial part of who we are: it’s what makes us unique in the world. 

An Australian Declaration of Recognition can articulate all this and more: our history, or heritage, and our aspirations for a shared and united future.  

Mr Martin asks important questions, which strike at our mutual concern for the future of our nationLet’s continue to have the conversation, and see if we can’t create an even better Australia.  

David Allinson is a final year Juris Doctor candidate at the Melbourne Law School and the Executive Officer of Uphold & Recognise. 

Uphold & Recognise