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Australia

Jan 28, 2014

Indigenous recognition more complicated constitutional change than you think

Tony Abbott is right to wait for the right time to put constitutional recognition of Aboriginal Australians to the people. It's a more complicated process than most of the media is telling you.

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The media loves Aboriginal reconciliation. It’s an opportunity for upbeat, feel-good stories: everyone wants to believe that we can all be one big happy national family. White Australia can atone for its past misdeeds, while indigenous Australia can forgive in return for acceptance.

The narrative is especially compelling when it centres on a politician like Tony Abbott, whose background casts him (perhaps unfairly) as an opponent of reconciliation and indigenous rights. When he says — as he did on Sunday — that constitutional recognition of indigenous people is “a very important national crusade” that “won’t be changing our constitution so much as completing it”, it has all the appeal of a conversion story.

So nobody wants to be seen as a wet blanket. Which might explain why none of the media spends its time actually explaining the issue: as soon as you dig a little deeper, it becomes obvious that the prospects for constitutional change are rather dim.

We had a sort of preview of this last year, with the Gillard government’s proposed referendum on “recognition” of local government. Few commentators bothered to point out that it was a specific proposal with specific consequences, so the public was left mostly in the dark about why it might be controversial.

So it’s not surprising that Michelle Grattan, who was one of the worst offenders on the local government question, should also be capable of writing at length about indigenous recognition without telling the reader what makes it controversial.

Grattan says the Gillard government “botched its plan for indigenous recognition” because its panel “proposed changes too radical to get support”. That’s sort of true, but it’s misleading because it suggests there’s some readily available “moderate” alternative that might have won both sides over.

The reason that “moderate” change in this area is hard — as I explained at some length when Gillard’s panel first reported — is that the obvious candidates for a constitutional tidying-up, namely the race-based provisions of sections 25 and 51(xxvi), can’t be just repealed. They need to be replaced with something that includes a guarantee that indigenous people won’t be discriminated against.

But guarantees of that sort — the sort of thing one might find in a bill of rights — are anathema to most of the Coalition. As I said two years ago, “hell would freeze over before the Coalition would support” the clause proposed by Gillard’s panel.

Yet no one has come up with a plausible alternative. Either you get something that looks like a detached fragment of a bill of rights, or the Commonwealth loses the power to legislate specifically for indigenous people, or the constitution retains its awkward 19th-century-sounding provisions about race.

Of course it would be possible to ignore sections 25 and 51(xxvi) altogether and just insert as a constitutional preamble some motherhood sentiments about our indigenous heritage, like those in the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. But not only is that a lot of work for a small result, it would fall well short of what supporters of reconciliation would like.

And with Abbott now so publicly committed to a referendum, they may well feel able to push him to get something more.

My feeling is that if they do, they will fail. Abbott’s statements on recognition are positive, but they also breathe a heavy note of caution. “[M]ake sure that we do it right, get it right … a rushed job might be a botched job … we have to be comfortable with it as a nation.” It looks to me as if he’s setting himself up for dropping the idea down the track if the reconciliation lobby insists on pushing for a substantive amendment.

And although I don’t doubt the sincerity of his commitment in principle to indigenous recognition, politically there’s nothing in it for him. Nobody is going to vote against Abbott because he soft-pedals on reconciliation: the few who support it passionately are voting against him anyway.

Recent Australian history is full of ambitious announcements about constitutional change that ended up being quietly shelved. Mark Leibler, who co-chaired Gillard’s panel, says (as quoted in The Age today) that Abbott’s support provides “a golden window of opportunity” for change. But it won’t happen unless someone comes up with an actual form of words that he really does support.

In that respect, the dynamics haven’t really changed since Abbott was opposition leader. He may get his referendum, but only if his political opponents are willing to roll over and give up on substantive change.

Charles Richardson — Editor of The World is not Enough

Charles Richardson

Editor of The World is not Enough

Charles Richardson has contributed to Crikey since 2002, and was a ministerial adviser in the Kennett government and a former editorial manager at the Centre for Independent Studies in Sydney.

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