Constitutional reform crucial to Indigenous wellbeing

, - December 24, 2011

the australian photo 20111224

There is an existential angst about the place of indigenous cultures in the Australian nation.
Picture: Ray Strange Source: The Australian

I HAVE been close to the epicentre of indigenous policy for 20 years now. During this time I have dealt with premiers and prime ministers, ministers and public servants, both great and small, smart and dumb, committed and careless.

I think I have seen every permutation of policy and program, and the swings of the policy pendulum from left to right and back again. Real progress has been made in some areas, but the larger picture is one of waste and failure.

Like other Australians who take this policy scene to heart, my moods swing from ebullient optimism to deep depression. The small gains lift me but the entrenched failures stricken me.

My experience is less than half that of Lowitja O’Donoghue, Marcia Langton and Galarrwuy Yunupingu. I recall sitting on the beach at Yunupingu’s Arnhem Land outstation with former minister Mal Brough and hearing Yunupingu list the names of the prime ministers and ministers he had dealings with since the days of the Gorton government. His story could have been titled Groundhog Day.

It is not for nothing that the one conviction I share with these leaders is that constitutional reform which properly defines the place of indigenous Australians in the nation is a matter of first importance.

Before I set out my reasoning as to why I think indigenous wellbeing is ultimately related to the constitutional framework affecting indigenous people, I will set out the context of the divided debate on indigenous policy in our country.

In the simple binary of indigenous policy, people divide into two crude camps. The first camp, largely comprising people of progressive, left-liberal disposition, believes it is the failure of indigenous people to enjoy their human rights that explains the parlous status of Aborigines and Torres Strait Islanders. This camp predominantly champions what came to be called “the rights agenda”.

Larissa Behrendt and my colleague on the Expert Panel on Constitutional Recognition of Indigenous Australians and co-chairman of the National Congress of Australia’s First Peoples, Les Malezer, are well-known representatives of this camp.

The second camp, largely comprising people of liberal and conservative disposition, believes it is the inability of indigenous people to exercise personal and social responsibility that is the more salient explanation. This camp predominantly champions what has come to be called “the responsibilities agenda”.

Former ALP national president Warren Mundine and Northern Territory leader Bess Price are well-known representatives of this camp.

I am also known for my advocacy of the responsibilities agenda, which has been the main focus of my policy and practical work in Cape York Peninsula for more than a decade now. But like my closest colleague, University of Melbourne’s Langton, I have also been involved in advocating the rights agenda, and have not stopped. Indeed I have always sought to argue that the right to take responsibility is our most fundamental right.

I do disservice to both camps by characterising them in this crude way. The truth is Behrendt and Malezer understand the importance of the arguments advanced by the responsibility advocates, and indeed Mundine and Price understand the importance of indigenous rights.

But it is a matter of emphasis and weight, whether one falls on one side of the argument or the other. And emphasis and weight matter in public discourse.

When policy discourse becomes policy practice, then emphasis and weight have real consequences. Those championing the rights agenda can end up ignoring, or indeed outrightly resisting and thwarting, practical responses to the corrosion of personal and social responsibility in indigenous communities. Witness the strange obsessions of the anti-intervention Left.

It is this thoughtless willingness to abandon people who are suffering real crises of hunger, violence and social breakdown, to millennial hopes for a New Jerusalem of social justice for the indigenes, that I side with leaders such as Price against the bourgeois resistance, black and white. It is why I believe this newspaper has been on the right side of the argument for a decade now.

I have always believed that indigenous rights and responsibilities are two sides of the same coin. They must both be in place.

But public discourse is not static and simple, where the achievement of the perfect balance between rights and responsibilities is just a matter of getting the weights right on both sides of the scale.

Rather, public discourse is like a ship sailing on the ocean, and such a ship rarely sails on an even keel.

As much as I try to maintain a balanced calibration, in truth I lean in favour of the Price-Mundine side of the scale. This is because I believe that strengthening our people and looking to ourselves as the most conscientious underwriters of our destiny is always the best policy.

I have set out this digression on the polarised policy discourse concerning Aboriginal and Torres Strait Islander peoples in order to explain why constitutional reform is crucial to the indigenous policy reforms that have been advocated by those who have championed the responsibilities agenda along with me. Let me now set out my reasoning.

I have come to think of national constitutions as the ultimate framework within which the wellbeing — or un-wellbeing — of a nation’s citizens is provided for. For it is the national constitution that defines how a society is to be governed and the place of the citizen and his or her relationship with other citizens and the country’s institutions. The values and expectations, rights and responsibilities of citizens and the institutions by which they are governed are ultimately provided for, or not provided for, in the national constitution. National constitutions also provide important symbols for the nation with more or less, high or low, poetry.

If it is right to take the constitution as the ultimate parameter within which a nation’s citizens can achieve an acceptable level of wellbeing, then the Australian Constitution must be considered one of the great constitutions in world history. This is because the level of wellbeing of the overwhelming majority of the nation is among the highest in the world.

We then turn to the eternal national conundrum: why are the levels of wellbeing of indigenous Australians so far below the rest of the nation?

It is not just a matter of marginal difference: the gaps are gaping wide. It is as if there is a Third World country in the middle of the First, one showing few signs of development.

What is it about our status as citizens of this privileged and opportunity-brimming country that explains the yawning gap? Why does the Constitution not operate to secure indigenous wellbeing as well as it does for the rest of the nation?

It is possible to argue that indigenous un-wellbeing is unrelated to the nation’s constitutional framework: that it is to be completely explained by the collapse of indigenous responsibility and by the innate features of indigenous peoples and their cultures, or whatever.

This is the main argument that will have to be answered, because many Australians will have compelling proximate explanations for the conundrum.

Yes, I agree there is a crisis of indigenous personal and social responsibility caused by welfare.

Yes, I agree that indigenous societies will have to adapt to the demands of development.

Yes, I agree that indigenous cultures, like cultures the world over, must ultimately yield to the Enlightenment.

Yes, I agree the problems have their roots in history.

Yes, I agree with education as the most powerful means of uplift.

However, there are features of our condition as indigenous peoples that I believe have their ultimate explanation in the constitutional framework within which our peoples are located.

First there is an existential angst about our indigenous culture and identity and what place, if any, it has in the Australian nation. This is a longstanding and fundamental anxiety, one paralleled by distinct peoples the world over.

The demand that Aboriginal and Torres Strait Islanders utterly assimilate into the mainstream British-derived culture casts a long shadow here.

Only with confidence can people find the common grounds of assimilation and integration with others while maintaining and celebrating diversity.

We need to recognise the indigenous cultures and languages of the country as part of Australia’s national heritage while affirming the country’s patently British-derived institutions, culture and language.

Second, indigenous peoples are treated as members of a race, and indeed a particularly mendicant one. This is directly mandated by the Constitution, which until 1967 specifically excluded Aboriginal people from the operation of the race power (section 51(26)) and since 1967 has been the basis of indigenous inclusion in the Constitution.

Today we understand something not understood in 1967. The act of inclusion was correct, but the basis of that inclusion — race — was most unfortunate.

I share the view of conservatives such as commentator Andrew Bolt that we must move beyond race. Australia must remove race as a concept from our national Constitution. I am convinced that the constitutional characterisation and treatment of Aborigines and Torres Strait Islanders as members of a race is why the national Constitution does not work as a framework for wellbeing for the country’s native peoples.

So much bad policy and bad mentalities flow from treating our people as members of a race.

Whether adverse or benign, treating people as members of a race should never be the basis for law or policy. In the past the race power was used as the means for adverse discrimination and exclusion. Since 1967 it has been primarily used as a means for positive discrimination and responding to mendicancy.

Whatever the motivation for special racial treatment, the results of both are dismal.

We need to address the social and economic disadvantage of indigenous peoples on the same basis as that of other citizens: on the basis of social need, not ethnicity, colour or origin.

There will be a point at which the argument of conservatives who wish to eradicate race will be at odds with our argument in that they claim that recognition of indigenous peoples is another form of racial category.

To equate indigenous recognition with racialism is an easy off-the-cuff argument, but it is not a sustainable one. It would be historically and culturally obscurant to demand that ridding our nation of the false concept of race means we must also erase that which is indigenous.

I have no doubt we will never achieve the goal shared by the vast majority of Australians — that we close the gap on wellbeing — if we do not remedy these two features of our Constitution.

How we achieve these two reforms we will have much time to debate and discuss next year, after the expert panel provides its report to the Prime Minister and the Leader of the Opposition next month. I believe the panel’s recommendations represent a fair starting point for this crucial deliberation.