July 29th 2017

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COVER STORY The rise and rise of Old King Coal

EDITORIAL Behind Donald Trump's endorsement of Poland

CANBERRA OBSERVED Cory Bernardi claims strong flow to his ranks

INTERNATIONAL AFFAIRS Liu Xiaobo's extraordinary courage remembered

INTERNATIONAL AFFAIRS Why we must fight for freedom: Trump in Poland

HEALTH Gardasil(R) and the man upon the stair, Part II

INTERNATIONAL AFFAIRS Death of caliph will hasten end of Islamic State

MUSIC What's in a tune: minor change makes a major difference

CINEMA Spider-Man: Homecoming: Reboot on a domestic scale

BOOK REVIEW Moves that may push our constitution over

BOOK REVIEW Exposing the transgender agenda


GENDER POLITICS Edmund Rice Education Australia proposes transgender sex-ed

GENDER POLITICS Melbourne mum goes viral on 'Safe Schools'

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Moves that may push our constitution over

News Weekly, July 29, 2017

THE BREAK-UP OF AUSTRALIA: The Real Agenda Behind Aboriginal Recognition

 by Keith Windschuttle

Quadrant Boooks, Sydney
Hardcover: 470 pages
Price: AUD$44.95

Reviewed by Dr Augusto Zimmermann


Keith Windschuttle is a leading Australian conservative writer. He is also an accomplished historian and the editor of Quadrant, a prestigious conservative current affairs magazine.

Windschuttle is a prolific writer and the author of numerous articles and books. His most famous contribution, The Fabrication of Aboriginal History: Volume One (2002), was positively reviewed by Geoffrey Blainey, arguably the country’s greatest ever historian. Blainey called it “one of the most important and devastating books written on Australian history”.

In his latest book, The Break-Up of Australia: The Real Agenda Behind Aboriginal Recognition, Windschuttle explains why, in his opinion, Australian voters have not been told the truth about the proposal for constitutional recognition of Aboriginal people.

Aboriginal activists often contend that the Australian Constitution is a racist document that discriminates against Aborigines. They express a desire to remove “racist” provisions of the constitution, and to add a new preamble that recognises the “first inhabitants” of Australia and potentially their special rights as the traditional custodians of the land.

Contrary to these claims, the Australian Constitution is positively not a racist document. On the contrary, as Windschuttle points out, most Aborigines had full citizenship in 1901. Even before Federation, “the great majority of Aborigines had the same political rights as other Australians, including the right to vote, which the Constitution guaranteed in Section 41” (p2).

Nonetheless, section 25 of the Constitution is often interpreted as contemplating a denial of the franchise on the grounds of race. This section says: “For the purposes of the last section, if by the law of any state all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the state, then, in reckoning the number of the people of the state or of the Commonwealth, persons of that race resident in that state shall not be counted”.

As noted by Windschuttle, the reason the section was included in the Constitution is because in the 1890s Queensland and Western Australia did not allow full-blood Aborigines to vote in state elections. That being so, the constitutional framers wanted to bring those states into line with all the others, where Aborigines did have the franchise.

This provision was therefore designed to penalise the states that discriminated against Aborigines by reducing their representation in Federal Parliament. Rather than denying Aboriginal people the franchise, the framers of the Constitution actually supported giving all Aborigines voting rights from the very outset.

Another passage in the Constitution that Aboriginal activists identify as racially offensive is section 51 (xxvi). This reads in full: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) The people of any race, for whom it is deemed necessary to make special laws.”

However, as Windschuttle notes, not once since Federation has section 51 (xxvi) lent support to unfair discrimination on grounds of race. On the contrary, in Kruger and Bray v Commonwealth (1997), Justice Dawson stated that the powers given under this provision “were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally”.

Aboriginal activists often complain that Aborigines are not acknowledged in the Australian Constitution. Yet, as Windschuttle correctly reminds us, the Australian Constitution is primarily a federal charter. It is a practical compact to establish a federal system, not a synopsis of Australian history: it was never intended to be a document reporting on the history of the Australian people.

The Australian Constitution does not mention the history of any ethnic group at all. Instead, the Constitution is a federal compact between the people of the six former colonies to form a Federation. Its primary function is to distribute various powers between the Commonwealth and the States.

In order to gather popular support, the advocates of recognition appeal to highly emotional language. Apparently Australians have no other option but to support recognition. This was the message conveyed in the Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel, in September 2014.

This excerpt on page 11 confirms the information: “The recognition of our first peoples in the Constitution carries with it a moral imperative. The continued journey towards reconciliation relies on the restorative power of this referendum. A failed referendum cannot be contemplated. Indeed, the risk of anything but a resounding national ‘yes’ vote is difficult to comprehend.”

The opening chapter of the Report lays down its case explicitly: “In a country that takes pride in its liberal and democratic traditions, it is surprising for many to learn that the birth of the nation was attended by racially discriminatory sentiment, and continues to contain racially discriminatory provisions in its Constitution.”

Australians deserve to hear opposing views before any decision is made to proceed with a referendum. This is why this book, The Break-Up of Australia, is so important. It helps us to assess any risk derived from recognising Aboriginal peoples in the Constitution, and why a national “no” vote to recognition might not be entirely a negative thing after all; quite to the contrary.

Far from being a racist document, our Constitution treats all Australians equally, no matter when they or their ancestors arrived here. By contrast, a successful referendum could further divide the nation, not unite us. It might be discriminatory to give some Australians status and privileges that are not available to others simply because of their ancestry.

So, why is it necessary to amend the Constitution when it is clearly not a racist document? Why is it necessary to amend the Constitution when every jurisdiction in Australia has long ago legislated for racial non-discrimination?

According to Windschuttle, the real intention behind recognition is to gain “sovereignty” for a future “black state” equivalent in status and funding to the existing Australian states. “Black activists and their white supporters are talking about this recognition being a ‘launching pad’ or the ‘next step’ in the process towards their real objective of self-government and sovereignty,” he writes.

Windschuttle argues that these activists want us to recognise the “distinct rights” that purportedly flow to Aborigines because of the fact they are descendants of the first peoples. Following a successful referendum, “Aboriginal rights would become a matter of constitutional interpretation by the High Court. As they demonstrated in the Mabo case in 1992, judges of the High Court are far more likely to give aboriginal activists what they want than are politicians.” (p15)

In sum, Australians would be asked to recognise “distinct rights” that purportedly flow to Aborigines on the grounds that “we got here first”. For Windschuttle, “we got here first” is a much poorer constitutional principle than “we are all created equal”.

Break-Up of Australia is well written and well argued. It is an important contribution to a significant debate, so every fair-minded person would gain by reading it. As for myself, I have really gained by it and so I wholeheartedly recommend it.

Dr Augusto Zimmermann is a Law Reform Commissioner with the Law Reform Commission of Western Australia and Professor of Law (adjunct) at The University of Notre Dame Australia, Sydney. He is also Director of Post-Graduate Research and Former Associate Dean (Research) at Murdoch Law School, and a Fellow at the International Academy for the Study of the Jurisprudence of the Family.

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