Abbott and Bolt both wrong on constitution 27 January 2014 | 12 Comments PRIME Minister Tony Abbott had this to say on the weekend about his cherished planned constitutional amendment: “If we had known in 1901 what we know now, if our hearts had been as big then as now, we would have acknowledged Indigenous people in the constitution back then”. News Ltd columnist Andrew Bolt could not disagree more, blogging in response that this was “utter nonsense”. “Australia’s founders no more lacked heart than do people today”, he writes. “The difference is that they were inspired by the creed that all citizens are as one before the law.” Abbott and Bolt are both wrong. The founding fathers did specifically acknowledge Indigenous Australians, twice, in the constitution. Section 51 began with “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: - “ Beneath it were 39 subsections, number 26 of which said: “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. Section 127 said “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.” (My italics added to both.) Acknowledgments don’t come more specific than that. They just weren’t positive ones. And the creed was far from “all citizens are as one before the law.” Both of these references were taken out by the 1967 referendum, famously the most-approved of out of 44 such votes since federation, with 90.8 per cent choosing “yes”. Two years ago this month, the Gillard government’s appointed Expert Panel on “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” published its report, including recommended constitutional amendments, (report is here, see full list of recommendations on page xviii) one of which was to “[a]cknowledge ... the need to secure the advancement of Aboriginal and Torres Strait Islander peoples”. Then-Labor-identity Warren Mundine made clear his firm opposition. “I feel strongly about this, it’s a hundred steps too far, I’m opposing it and I’ll campaign to oppose it.” He said. It was “a dog’s breakfast” that would “lead to idiotic arguments about what advancement means.” Instead, any constitutional amendment “needs to be simple”, he said. “Let’s take racist sections out of the Constitution and have a new preamble like we originally planned.” But, as the report spelt out, it can’t be that simple. There are two references to “race” in the constitution. The first, (s 25), can (say the experts) be taken out with no fuss. But if s51 xxvi mentioned above (aka “the race powers) is deleted (only the words in italics were taken out in 1967) and not replaced with something else, all sorts of Commonwealth legislation becomes open to legal challenge. As George Williams has written, simply repealing that sub-clause “could undermine the validity of existing, beneficial laws already enacted under the power ... in areas like land rights, health and the protection of sacred sites.” Unless we want to see these things undone (and some might—which is fine, as long they understand that’s what they are doing) another form of words needs to be inserted. That’s where “advancement ...” comes in. Or something else instead. And it’s where the big arguments arise. Should we approach this whole question another way? Might we instead ask: Is it appropriate in the 21st century for our constitution to still contain references to “race”? Most Australians would probably answer it is not. Ok, but then we’re back to: what do we put there instead, with opponents arguing, not without logic, that if allusions to “race” are inappropriate why is it ok to specifically mention one particular race? In 1967 Australians voted to take mentions of Indigenous Australians out of the constitution. That was, conceptually, a pretty simple matter (and at the “elite” level the status quo was getting, like White Australia, uncomfortably embarrassing) even if the eventual repercussions (laws mentioned by Williams, above) were not. Noel Pearson, who was on that panel that reported in January 2012, is quoted in that document as reasoning that the 1967 result: “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.” But a “positive” outcome is obviously more ambitious than a “neutral” one. Now in the Australian, Pearson seems to project his own fuzzy feelings about the current prime minister onto the Australian electorate, seeing in Abbott a conservative of the stature required to lead us on this next step. But this kind of leadership really only exists in fiction, or in far-fetched accounts of the past. (Most people’s ideas of “leadership” involve changes that are unpopular at the time, which is not possible via referendum.) And Abbott does not attract enormous levels of respect in the community, while Bolt, who is shaping up as the “no” case de facto leader, enjoys almost hero status in conservative circles, including in parliament. (Pearson also seems to have repressed the memory of the fiasco of “elder” John Howard’s 1999 preamble, which the then prime minister dumped when it became clear it would fare worse than the republic question.) Still, Pearson’s “Nixon and China” template has validity. Liberal opposition leaders generally do not possess the authority in their party (and Coalition) to support Labor government-sponsored constitutional referendums. For Labor ones it’s easy, because attempting constitutional amendment is in their DNA. For a text-book example of the former, and the dynamics involved, see Abbott’s backdown on last year’s local government referendum plans. By contrast, Liberal prime ministers in the past have been able to bring the conservative side with them. Most recently, Malcolm Fraser’s four 1977 attempted amendments all received more than 60 per cent “yes” votes. Furthermore, while bipartisan support has over the last century provided a firm (necessary but not sufficient) base for referendum success, that electoral equation may not add up to what it once did. These days the major parties enjoy between them less currency (and smaller percentages of votes) than they did. In 1967 Prime Minister Harold Holt, his deputy Jack McEwen and Opposition Leader Gough Whitlam all signed up in what the Canberra Times described as a “trinity”. Today it’d be: Abbott. Warren Truss. Bill Shorten. Doesn’t really encourage religious metaphors. Regardless of the form of words Abbott presents by September, the Coalition inside and outside parliament is likely to fracture as polling day approaches. Much of it will be driven by egos and personal ambition. This being Australian politics, the language will at times be brutal. And it’s not beyond the bounds of possibility that the Abbott government, faced with likely defeat, eventually cuts its losses. Because some things are just beyond the capability of Australians voting at referendums. The founding fathers did us no favours lumbering us with the referendum mechanism for constitutional amendment. They should have followed the American and Canadians models of large national legislature majorities plus majorities of state legislatures. Something difficult, requiring public discussion and accountability, but away from the immediate hands of voters. The original plan, described in the first, 1891 draft constitution, had elected conventions. (See here.) That might have been best of all. Some distance from the drama of electoral politics would facilitate cooler discussion of these important questions. Return to Mumble Blog blogs.theaustralian.news.au/mumble/index.php/theaustralian/comments/abbott_and_bolt_both_wrong/
Posted on: Mon, 27 Jan 2014 07:56:45 +0000
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