Aboriginal referendum a test of national maturity

, - January 26, 2011

the australian picture 20110126

An illustration by Peter Nicholson. Source: The Australian

I think this referendum is important in terms of moving forward with unfinished business. What is absolutely critical is that everyone is not going to get everything they want. There has to be an element of give and take in all of that. What I’m looking for is what I describe as meaningful reform. – Mark Leibler, co-chairman of the expert panel on constitutional recognition of indigenous Australians

Surely Australia can do something that is reflective of our maturity and our preparedness to acknowledge indigenous peoples in a proper and respectful way. – Patrick Dodson, co-chairman, expert panel

We don’t want to be too legally ambitious. Australians have demonstrated that they are more likely to vote against constitutional change. I think it’s proper that people offer up a range of viewpoints, but it has to be measured in the context of reality. Fundamentally, I don’t think there’s an appetite for significant change. – Ken Wyatt, MP, member for Hasluck and member of the expert panel

WITH these words, three of my colleagues on the expert panel established to investigate the question of constitutional recognition for indigenous Australians have opened the batting this year.

I am less than sanguine about prospects for the season ahead, and not just because of the auspicious strokes from our openers. Whether the campaign ends in the Ashes or ashes is up to all of us.

I reluctantly accepted Indigenous Affairs Minister Jenny Macklin’s invitation to join the expert panel. My trepidation stems partly from a rational analysis of successful constitutional change in Australia: that it usually requires conservative leadership, because only Nixon can go to China.

The other source of pessimism is that the federal political situation, rather than delivering the dynamic new paradigm that Rob Oakeshott dreamed of, has instead turned into a quagmire of policy indecision and political uncertainty.

Every new week feels like last September, with the country still waiting for a resolution from the election. The country’s faith in governmental competence has been shaken by our experience under Kevin Rudd.

The fact that Tony Abbott has maintained his election commitment to constitutional reform and the process now under way is endorsed by all parties and the independents means we should chance our arms and see what happens.

There are two schools of thought when it comes to the Constitution. One school sees the nation’s founding document as antiquated by the passage of time and feels there is a need for revision. This view seeks optimal alignment between the nation’s fundamental document and the social and cultural changes in Australian society.

The other school holds a more lapidary view of the Constitution. In the same way as the principles of the Bible are not to be amended in the face of social and cultural change, the nation’s Constitution is carved from granite and, though it may lose its sheen under the harsh Australian elements, the words are still clearly legible and the stone will not be weathered to sand.

I think Ken Wyatt is right that most Australians are not supporters of the first school. If they don’t exactly hold the Constitution as a sacred Mosaic tablet, then their “if it ain’t broke, why fix it?” attitude is a high bar to overcome.

This practical and prudent approach is understandable for a nation that has been served well by its Constitution. I share the conservative disposition that achievements such as the Australian Constitution should not be disturbed lightly.

My view is that the Australian Constitution has served 97 per cent of the nation well. It has not worked, and does not work, for 3 per cent: my people, indigenous Australians. It is broke and was broke for the 3 per cent from the beginning, in 1901.

The Constitution is not otherwise broke. If you put aside the indigenous question, there is no compelling case for changing the Australian Constitution. Whether or not Australia becomes a republic is not a question of whether the Constitution works satisfactorily. No matter what those passionately in favour of an Australian Republic may say, the nation is well served by the Constitution as it stands.

To my contention that the Australian Constitution does not work for indigenous Australians, the question is rightly asked: “But did we not fix up the problem with the original Constitution when we voted in favour of Aboriginal citizenship in 1967?”

The original Constitution of 1901 established a negative citizenship of the country’s original peoples. The reforms undertaken in 1967, which resulted in the counting of indigenous Australians in the national census and the extension of the races power to indigenous Australians, can be viewed as providing a neutral citizenship for the original Australians.

What is still needed is a positive recognition of our status as the country’s indigenous peoples, and yet sharing a common citizenship with all other Australians.

Are these contradictory principles? I argue they are not. We can recognise the status of indigenous peoples without fracturing the principle that all Australians are equal citizens.

This question will lie at the heart of deliberations this year.

To address my colleagues quoted at the beginning of this piece, I say to my old Melbourne law mentor Mark Leibler: There is no need to talk about compromise and everybody not getting everything they want. We should not see the forthcoming challenge as one where some Australians will win and other Australians will lose something. If we don’t come up with a proposal that is a win for all Australians, then nothing we propose will succeed.

If any proposed reform does not meet with Lowitja O’Donoghue’s blessing, as an indigenous elder of Australia, then it will go nowhere. At the same time, if it does not meet with John Howard’s blessing, as a conservative elder of Australia, it will be equally doomed.

This means two things. First, any proposition that comes out of the process presided over by the expert panel should first be subjected to a preliminary vote of indigenous Australia. If our people do not support the proposition, then it should not be put.

Second, the timing of any referendum should be disconnected from any federal election. The question needs to be free from partisan considerations.

It is true what Ken Wyatt says about the need to be realistic, but realism is not the opposite of ambition. We should be ambitious for the country but not indulge in lazy idealism: realism and idealism must go together.

And Pat Dodson is right that this will be a question about the nation’s maturity.

But it will also be a test of the maturity of indigenous Australians and their leaders as much as the rest of the nation.