Kevin Bell reviews 'The Forgotten People' in the ABR

by Kevin Bell

Originally published in the Australian Book Review, November No. 386

Are you part of the non-Indigenous majority? Have you had too little contact with Aboriginal and Torres Strait Islander people? Do you feel that you do not fully comprehend their worldview, but wish you could? Is entrenched Aboriginal disadvantage eating away at your sense of Australia as a fair and united country? Do you still possess the recollection of your first encounter with an Aboriginal person, and wonder why it remains so enduring? Are you troubled by the time being taken to achieve constitutional recognition and frustrated that an apparently simple issue has become so vexed? If these questions resonate in your mind, you have much in common with many Australians and may benefit from reading these books.

Melbourne University Press has published It’s Our Country and The Forgotten People as companion contributions to the national debate about recognising Aboriginals in the Australian Constitution. In highly readable chapters by contributors from a variety of backgrounds, they each examine the issues in different ways, the former from an Indigenous and the latter from a liberal and conservative political perspective. You will not find here the answers to all of the questions that may be asked, but you will find informed discussion that is accessible to a general readership.

The publication of a book about constitutional issues written and edited wholly by Aboriginal authors is a significant event in the history of Australian letters. The editors of It’s Our Country are highly distinguished scholars: Megan Davis is a Professor of Law and Director of the Indigenous Law Centre at the University of New South Wales and an expert member of the United Nations Permanent Forum on Indigenous Issues; Marcia Langton is a Professor of Indigenous Studies and holds the inaugural chair of Australian Indigenous Studies at the University of Melbourne. Individual contributors, such as Noel Pearson and Patrick Dodson, will be known to many, but more than a dozen others, each deserving to be better known, write from their own particular Indigenous knowledge and experience.

The publication of The Forgotten People (the title draws on a famous phrase of Robert Menzies) is also a significant event because it represents a genuine attempt by writers from the (self-identifying) political right to explain the complexities of constitutional recognition as a reform proposal and suggest possible paths forward. The editors are also scholars: Damien Freeman is a lawyer, writer, and philosopher who lectures on ethics and aesthetics at Pembroke College, Cambridge; Shireen Morris is a lawyer, senior policy adviser, and constitutional research fellow at Noel Pearson’s Cape York Institute, and a researcher at Monash University. Individual contributors, including constitutional lawyers, political commentators, and public intellectuals, open the eyes of the reader to this perspective in a way that no other publication goes near.

These books share a commitment to addressing historical injustice and making real improvements to Aboriginal well-being and social, economic and political participation. As a means, constitutional recognition, in some form or another, is seen to be positive but not itself sufficient for the achievement of those urgent ends. In broad terms, the problem addressed by both books is achieving recognition that is not merely symbolic but substantively meaningful, and doing so in a way that might pass the toughest referendum test in the world: a majority of voters in a majority of states. The common premise that recognition on its own is not enough helps us to appreciate why constitutional reform is complex and that we have reached a critical point in the debate, one that invites consideration of what it really meant to colonise a country that had been occupied by many peoples, with their own established political and social systems, for at least 40,000 years.

As initially proposed by the authoritative Expert Panel on Constitutional Recognition of Indigenous Australians in 2012, constitutional recognition would not have gone to a referendum on its own. It would have been combined with (among other things) the long-overdue repeal of certain dead-letter, race-based provisions and the inclusion of a prohibition upon discrimination on the grounds of race, colour, or ethnic or national origin. This package of reforms, still the most coherent ever proposed, and the only one that is fully consistent with Australia’s international obligations, has not yet attracted referendum-winning support, and some fear that it never will. The search for common ground since 2012 has proved to be elusive and these books perform the invaluable function of helping people from different sides of the debate, and the Indigenous and non-Indigenous communities generally, understand each other.

Like Patrick Dodson, Megan Davis, and Marcia Langton, Noel Pearson was a member of the Expert Panel. Acknowledging that the political right would not support the Panel’s proposal for constitutional prohibition of racial discrimination, he has suggested an alternative path. The suggestion is the inclusion in the Constitution (by referendum) of an Indigenous Advisory Council. An important purpose of The Forgotten People is to provide various contributors with the opportunity to discuss this suggestion. Some combine it with a proposal for a strong Declaration of Recognition not inside but outside the Constitution, a proposal that is well developed in the chapter by Damien Freeman and Julian Leeser. The discussion in this book emphasises the (alleged) need to avoid amending the Constitution in a way that would give too much power to judges (i.e., constitutional recognition and protection against racial discrimination) and the meaningful advisory role that the Council would play in relation to federal legislation and government policy as regards Indigenous affairs.

It’s Our Country is a different kind of book. By giving Aboriginal leaders of all political persuasions the opportunity to discuss the issues using their own voices, it contributes both to constitutional reform and overcoming historical exclusion. The contrast with the framing of Australia’s Constitution in the late-nineteenth century could not be starker. Self-determination is the leitmotif of most contributions. Professors Langton and Davis write contextualising chapters that are especially powerful. The book implicitly discredits the facile but commonly held view that Aboriginal people should always speak with one voice and somehow eschew controversial political discussion. The chapter by Patrick Dodson goes beyond the recommendations of the Expert Panel persuasively to discuss the need to establish productive new political relationships between Aboriginal peoples and Australian governments through a treaty or treaties, a process that has begun in two states.

In the pursuit of shared enlightenment, these two books reach out to each other and they reach out to us. They help us to appreciate how significant is one premise of the debate that is solid common ground and a cause of much hope: Aboriginal and Torres Strait Islanders are peoples (bodies politic) whose unique position in the Australian political system must be recognised. When other Anglo settler-majority states like New Zealand, Canada, and the United States recognised that long ago, settler–indigenous relations were internally reorganised (imperfectly) along people-to-people lines within the existing political framework. Entrenched indigenous disadvantage and political exclusion as not and is not eliminated in those states. But an essential element of the political means for working towards those and other urgent ends was created. There is continuing debate about choosing the appropriate means in Australia to which these books, edited and written by key Indigenous and non-Indigenous participants, make a unique contribution.

Uphold & Recognise