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Indigenous recognition more complicated constitutional change than you think

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candidates for a constitutional tidying-up, namely the race-based provisions of sections 25 and 51(xxvi), can’t be just repealed.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.

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Categories: Australia

3 Responses

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  1. I need to re-read this but in summary, the significant obstacle is that the Liberal party don’t agree with the Labor proposal?

    I thought there was going to be some information about our constitution and why changing it is difficult, not that some mob of idiots have a narrow minded idealogy.

    by beetwo77 on Jan 28, 2014 at 1:51 pm

  2. I remember the boys from the Salvation Army Home at Indooroopilly riding on the back of a big truck each day as they were driven to the Indooroopilly State School in the 50’s. They had no shoes.
    It was a sad sight- when we asked our father he said that these boys had no family to look after them- so the Church was caring for them. I could weep after reading this gut wrenching account to think of the terrible things done to them.
    What is it about us that we are silent in the face of man’s inhumanity to man? Cant we ever learn compassion?

    Australia has a particularly bad record of abuse of children- starting with Aboriginal children , British migrant kids, adopting out babies by force not to mention our lack of real care for Australian children today. We continue by imprisoning and punishing the children of refugees.
    All the while telling ourselves what a kind and generous people we are!!!!

    by Pamela on Jan 28, 2014 at 3:39 pm

  3. Our constitution is the basic set of laws on how we govern ourselves.
    There should be no reference in such a document that favours or discriminates against a particular social group, whether defined by race or a similar characteristic.
    Disadvantage should be addressed directly as such, not by labelling one race or another.
    The place for a statement on indigenous history is a national charter, if we had one.

    by marant on Jan 28, 2014 at 6:19 pm

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