AUSTRALIAN CONSTITUTION by Bill Hassell AMNews Weekly
Should Aboriginal people be recognised in the Constitution?
, August 30, 2014
The Hon. Bill Hassell, AM, JP, was Liberal leader of the opposition in Western Australia during the mid-1980s and Agent General for WA from 1994 to 1996, and is a life member of the Liberal Party. His article below is a shortened version of one originally published in Policy Journal, a quarterly magazine which seeks to stimulate public policy discussion in the WA division of the Liberal Party.
When I joined the Liberal Party over 50 years ago, policy formulation had a lively role in the Party.
Bill Hassell AM
Mr (later Sir) Charles Court, Minister for Industrial Development in the David Brand Government elected in 1959, recognised that to stimulate Western Australia’s economic activity and growth, then pitifully small and slow, he had to have overturned the embargo imposed by Canberra on the export of iron ore.
One means he used to achieve that was the forum of the state council of the Liberal Party, where the issue was fought out. There, in the teeth of opposition from WA federal MPs, defending (as is so often the case) the position as laid down by the mighty Menzies government in Canberra, the WA state council voted to support the lifting of the embargo.
That event, when it happened, was the foundation of Western Australia’s spectacular economic growth from then until now. It was an event deeply influenced by the WA Liberal state council taking a stand on policy.
Today we face another great issue: the preservation of the integrity of the federal Constitution.
A body of people, including our Liberal Prime Minister, want to change it to include what is sometimes described as the recognition of aboriginal Australians as the first people of Australia.
On Australia Day this year, the Prime Minister, the Hon. Tony Abbott, included the following remarks in his Australia Day media release:
“We will also begin a national conversation about amending our Constitution to recognise Aboriginal peoples as the first Australians. This should be another unifying moment in the history of our country.”
That led to great media headlines across the country and to elaborate claims as to what it would mean and achieve, and to extended expectations of what else might be done, including proposed treaties between the government (one assumes the government in Canberra) and all the aboriginal “nations” said to have existed at the time of the original British settlement of Australia.
Leaving aside Mr Abbott’s adoption of the current pop language in referring to a “national conversation”, and the possibly challengeable factual proposition that aborigines were the “first” Australians, the included assumption was that, as the federal Liberal parliamentary leader had spoken, what he said is the policy of the Liberal Party.
That is not the case. So far as I know, the proposition has not been endorsed by the party in any state, nor by the federal conference or council of the party.
Even if it had been endorsed by the federal organs of the party, that would not bind the state bodies, and it may well be that when the requisite referendum is held to approve the changes to the Constitution that are desired by some, the traditionally conservative state bodies of the party will not heed the call, albeit from Mr Abbott, to support that change.
Mr Abbott himself is aware that, despite what clearly will be a nationally-funded campaign to garner support, there are many Australians deeply suspicious of changes to the federal Constitution, even if — and perhaps because — they are presented as symbolic.
I am opposed to changing the Constitution as projected to be proposed (we do not yet of course know what will be proposed) for many reasons, but for the purposes of this short exposition I will state but a few.
Racism cuts two ways, so to speak.
If it is racist to single out aboriginal people for constitutional disadvantage, as was the case before 1967 when we voted nationally and overwhelmingly to remove a constitutional provision which discriminated against aborigines, it is equally racist to include a new provision which singles out aborigines for some kind of special recognition.
As Melbourne conservative columnist Andrew Bolt colourfully put it: “I am an indigenous Australian, like millions of other people here, black or white. Take note, Tony Abbott. Think again, you new dividers, before we are on the path to apartheid with your change to our Constitution.
“I was born here, I live here and I call no other country home. I am therefore indigenous to this land and have as much right as anyone to it.
“What’s more, when I go before the courts I want to be judged as an individual. I do not want different rights according to my class, faith, ancestry, country of birth ... or ‘race’.
“I’m sure most Australians feel the same. We are Australians together, equal under the law and equal in our right as citizens to be here. That’s how we’ve been for generations…
“Stop now. Say no to racism. Say no to racial division. Say no to changing our Constitution” (Herald Sun, Melbourne, January 29, 2014).
Recognition of aboriginal people, or that they were the first Australians, should that in fact be the case, is wholly unnecessary and would be an excrescence on the Commonwealth Constitution.
The aboriginal people of Australia are part of the body of people who make up Australia, as a people, as a nation.
As I have been saying for a very long time, my aspiration is for the kind of Australia like that of the United States I see — one in which there is a visceral loyalty to the nation, its flag, its place in the world and its fundamental goodness.
In seeking and aspiring to address real and perceived disadvantage to many aboriginal people, we provide vast help through our governments (as of course we do to non-aboriginal people with need). That we so often fail in our aspirations does not detract from the commitment of the Australian people, nor does it in some way establish the need to change the Constitution.
My own hope is that, in the long run, separate “help” programs for aboriginal people will themselves be eliminated and merge into the mainstream. Empty symbolism by changing the Constitution to “recognise” one race of the many in Australia will do nothing to address real need.
It will do a lot to foster a kind of reverse apartheid, one in which aborigines see themselves as not part of the nation, but as needing treaties, a special status and special laws — a new and deeply dangerous paternalism.
Sad to say, I do not trust the High Court of Australia. The court has so often indulged itself in judicial activism — in imposing its notions of what the judges of that august body believe should be in the Constitution, instead of sticking to what is there, and leaving it to the mechanism for change embodied in the document itself (the referendum procedure) to achieve change — that one is led to the inevitable conclusion that no set of words of “recognition”, however carefully drafted or with whatever limitations, can be entrusted to the court.
Whatever words are used are likely to lead it to new adventures in law-making or policy-making.
At a seminar held in February this year at the Constitutional Centre of Western Australia, there was some discussion of the issue of applying different sentencing principles to aboriginal people from those applicable to the rest of the population.
One advocate, in describing the High Court’s decisions aimed to produce a common law of sentencing throughout Australia, seemingly suggested a need for the court to develop differing sentencing principles for aboriginal offenders.
I was glad to hear a judge clearly state his opinion that such a matter is for the parliaments, not the courts. But what a handy handle for the court to do such things if the Constitution itself formally recognises that aboriginal people are “different” Australians.
I am not alone in being suspicious of the High Court of Australia. Professor James Allan, Garrick Professor of Law at the University of Queensland, a person with experience of policies relating to indigenous peoples in Canada, Australia and New Zealand, wrote in an article about the “recognition” proposal.
He said: “In the last two decades our top judges have taken to interpreting our written Constitution in a way that I think is very hard to defend. Twenty years ago the High Court discovered, or read in, or flat out made up (according to taste) an implied freedom of political communication.
“Now I count myself as one of the biggest free speech adherents in the country, and in substantive terms I like this outcome. But as a matter of honestly interpreting the words of our Constitution these cases strike me as so implausible as to be laughable” (The Australian, January 31, 2014).
Even the less conservative Vice Chancellor of the Australian Catholic University, Greg Craven, an advocate for some form of “recognition”, has written: “[Writing of the fears of some as to ‘recognition’ words in the preamble to the Constitution] … others, in complete goodwill towards indigenous people, fear what an adventurous High Court might do with such words.
“Unfortunately, the record of that court is not entirely encouraging on the point of interpretative fidelity. But cautious wording would minimise the problem” (The Australian, February 19, 2014).
Minimise the problem perhaps, but not eliminate it.
I am one of those who is, as Greg Craven describes it, in complete goodwill towards aboriginal people. That does not mean I can or will support changing the Constitution as Prime Minister Tony Abbott, the Labor Opposition and many eminent persons suggest we should. To use an old saying, that which need not be changed needs not to be changed.
As a Liberal, I have always enjoyed the right to have a different opinion from the official line, so to speak. What I am suggesting here is that what Mr Abbott has proposed is not in fact the official line. It is unlikely to be accepted by large sections of the Liberal Party, if not rejected by a majority.
It is not Mr Abbott’s prerogative to declare party policy, and although he enjoys, as he should, tremendous authority as Prime Minister, even the parliamentary party may not accept his policy aim, although many will keep quiet about it for various honourable and less honourable reasons.
As Mr Malcolm Turnbull discovered in seeking to commit the Liberal opposition to a climate-change position wholly at odds with the view of the vast majority of Liberals, this is dangerous stuff.