Why we need constitutional change to recognise Australia’s first people
Many Australians are proud to be counted as members of this remarkable modern nation and its birth in a constitution building process. Great claims have been made of the creation of the Commonwealth of Australia, and one of them that we celebrate is the nature of our present society as a peaceful democracy.
While some may believe that there can be only minor quibbles with that proposition, it falls to me to present an Aboriginal view of our place in the nation. We have more than a few quibbles, the principle of which can be stated in this way: The racialised Aboriginal citizen is an unacceptable and inappropriate replacement for the absence of the Aboriginal person that our Constitution required for six decades. Some concept more appropriate than the reference to a ‘race’ in the Constitution should acknowledge our existence in the nation.
Indeed as Prime Minister Julia Gillard acknowledged recently, recognition of the first Australians in the Constitution would represent an “uplifting, uniting moment” for Australia that she believes “can be a wonderful national goal”.
The background to the apparently parliamentary manner of the conventions was a world of violence, racist violence. The modern nation constituted at Federation in 1901 excluded Indigenous people from the state; unable to vote until 1962, Aborigines inhabited a political no-man’s land for 61 years. The drafting of the Constitution of the Commonwealth of Australia occurred at the end of the 19th century when the intensifying ideological grounds for racism were bolstered by the new body of racial theory, often now called Social Darwinism that posited Aborigines as the lowest form of evolution among the human “racial” types.
Australian nationhood was founded in racism. Alfred Deakin judged that the strongest motive for Federation was ‘the desire that we should be one people, and remain one people, without the admixture of other races’.
The concept of race became a key constitutional issue in this country in 1900 when the drafters of the Australian Constitution constructed ‘race power’, which, in conjunction with the provision for the national census, excluded Aborigines from the ambit of this founding document in order to prevent surviving post-frontier Aboriginal populations from affecting the parliamentary representation of the states and financial distributions by the Commonwealth to the States.
Since Federation, public debates about the place of Aboriginal people in the nation have focused on the problem of how to incorporate Aboriginal people within the framework of the Australian nation-state by various means: assimilation, integration, self-management, self-determination, reconciliation, but always on the proviso that they would never be equal.
There is a persistent unwillingness to acknowledge that in Australia, the rights of Indigenous people are inferior to those in the United States, Canada and New Zealand.
It is wrong for Australians to claim that the nation was born of a peaceful process; at the very time that constitutional conventions were held as gatherings of the white colonial men who sought to federate the six colonies into a single commonwealth, their brothers were still engaged in savage frontier campaigns to take territory from Aboriginal peoples, territory that the men at the conventions assumed a new authority over. The frontier wars were not yet over: Aboriginal people were being incarcerated at settlements to separate them from the white settlers, and the Chinese people then living in Australia, many near the gold mining fields that had brought riches to the colonial masters were still under attack.
The unity of Australia is nothing, if that does not imply a united race. A united race means not only that its members can intermix, intermarry and associate without degradation on either side, but implies one inspired by the same ideas, and aspiration towards the same ideals, of a people possessing the same general cast of character, tone of thought.
Much has already been said about the exclusion of Aboriginal people from the Commonwealth in 1901, an exclusion that persisted until the 1960s when Aboriginal people were gradually enfranchised by state legislatures, and as a result of the 1967 Referendum, permitted for the first time to be counted in the national census.
It is worthwhile here to briefly consider the history of Aboriginal disenfranchisement: Since the 19th century, confusion about the Aboriginal right to vote in Australia has been typical in debates about the Australian polity, and the details of Aboriginal rights of citizenship poorly understood. Discussions of the details of Aboriginal citizenship rights – or, more to the point, lack of such rights – have been largely confused by the effect of the 1901 Constitution on the franchise statutes of each of the States.
In essence, whatever Aboriginal rights emerged from these documents would willfully be ignored or eroded to give the effect of total disenfranchisement and recognition.
I propose that our children will benefit from a serious consideration of these issues, in particular, proposals for referenda questions that would deal with removing the offending racist provisions of the Constitution, Section 25 and Section 51 (ss. xxvi), and replacing them with an acknowledgement of the pre-existing Aboriginal polities, or Aboriginal nations, and the necessity to make agreements with these groups in order to achieve peace and good order. We must, I believe, leave our children with a formal acknowledgement in our Constitution of the existence of the Aboriginal and Torres Strait Islander peoples, one that goes beyond the racialised citizen and encompasses the explicit rights of peoples within our nation state.