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I wish I could read faster, but when I open a book, my whole body slows down as I let the prose find its rhythm. Sometimes I forget the story altogether, luxuriating in the words.  >

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  1. George Williams and David Hume, People Power: The History and Future of the Referendum in Australia, University of New South Wales Press, Sydney, 2010.
  2. For a brief account of this history, see http://indigenousrights.net.au/section.asp?sID=5; see also Bain Attwood and Andrew Markus, The 1967 Referendum: Race, Power and the Australian Constitution, Aboriginal Studies Press, Canberra, 2007 (previously published as The 1967 Referendum, or, When Aborigines Didn’t Get the Vote, 1997).
  3. Megan Davis is a professor of Law and director, Indigenous Law Centre, Faculty of Law, University of New South Wales.
  4. Unpublished document in the hands of the author.
  5. See Brian Costar, ‘“Odious and Outmoded”? Race and Section 25 of the Constitution’, www.sisr.net/publications/nd_costar.pdf, accessed 29 August 2011.
  6. Costar, ‘“Odious and Outmoded”?’.
  7. See Constitutional Recognition of Indigenous Australians, Expert Panel Terms of Reference, www.youmeunity.org.au/downloads/1573e091bcdf7e2627c8.pdf, accessed 29 August 2011.
  8. Megan Davis, ‘Indigenous Rights and the Constitution: Making the Case for Constitutional Reform’, www.youmeunity.org.au/downloads/59e49578713aa81c2a59.pdf, accessed 29 August 2011.
  9. Davis, ‘Indigenous Rights’. Indigenous rights in the Constitution’, The World Today, 24 July 2011, available at www.abc.net.au/worldtoday/content/2008/s2313335.htm, cited in Davis, ‘Indigenous Rights’.
  10. ‘Coalition concerned over Indigenous rights in the Constitution’, The World Today, 24 July 2011, available at www.abc.net.au/worldtoday/content/2008/s2313335.htm, cited in Davis, ‘Indigenous Rights’.
  11. Davis, ‘Indigenous Rights’.
  12. As cited in Galarrwuy Yunupiŋu, ‘Tradition, Truth and Tomorrow’, Monthly, no. 41. pp. 32-40. 13 As explained earlier, the 1967 referendum is said to be the most successful referendum in Australian history, in part because a ‘No’ case was not developed or prosecuted. That there should be unanimous support from the political parties is critical to this matter being successful. In People Power, Williams and Hume show that the successful referenda—only eight of forty-four—have had in common the absence of a ‘No’ case.13 As explained earlier, the 1967 referendum is said to be the most successful referendum in Australian history, in part because a ‘No’ case was not developed or prosecuted. That there should be unanimous support from the political parties is critical to this matter being successful. In People Power, Williams and Hume show that the successful referenda—only eight of forty-four—have had in common the absence of a ‘No’ case.
  13. Williams and Hume, People Power, pp. 216, 211–14.
  14. Williams and Hume, People Power, pp. 218–20
  15. Williams and Hume, People Power, pp. 226–7.
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Reading the Constitution out Loud

Marcia Langton

Marcia Langton on the history and future of recognising Indigenous Australians in our Constitution.

The traditional owner, an older woman with a tough grace, welcomed us to her land. Her words were plain and her voice was tinged with a sense of pride. Her group was one of the few in southern Australia to obtain a native title determination recognising the members as native title holders. They were now part of the social fabric of this small rural town in Victoria, and before the proceedings had commenced, one of the local dignitaries had engaged her in quiet conversation. I overheard a few of her words: ‘next meeting’, ‘can’t see any problem with the proposal’, and ‘good rain’. Everyone was talking about the rain. There had been more rain since January when the floods had hit, and all the waterholes and creeks were overflowing. It was still raining.

Here at the clubhouse at the local golf club in Horsham, a hardy few had come from the town and district in the freezing cold to hear me explain the work of the Expert Panel on Constitutional Recognition. A few town dignitaries were joined by retirees who had voted in the 1967 referendum; there were some town residents and others who lived on the craggy western side of the Grampians in native forests.


Langton

Untitled (Marcia Langton) 2002, detail, Christian Bumbarra Thompson. Pegasus print colour photograph 55 x 55 cm. National Gallery of Australia, Canberra. Purchased 2002. Courtesy of the artist and Gallery Gabrielle Pizzi

I began with the usual preliminaries. Julia Gillard, the Prime Minister, had made a commitment to hold a referendum during this Parliament’s term on the question of recognising Indigenous Australians in the Constitution. Along with others, I had been appointed by the Prime Minister with the task of delivering to her a report in December 2011 with recommendations on a referendum question or questions on changing the Constitution to recognise Indigenous Australians. The panel includes members of parliament from all parties and one independent, Rob Oakeshott. Two constitutional lawyers, Henry Burmeister and Megan Davis, are members, and the remainder are leaders representing a matrix of issues; youth, gender and the Indigenous, corporate, legal, philanthropic and policy sectors. The terms of reference of the panel reach the highest standard of political correctness and political expediency in the era of ‘Reconciliation’. The challenge had been accepted by the panel members, despite the costs to our professional and personal lives incurred as a result of the travel commitments.

We are required, in less than a year, to involve the public in discussion and debate on difficult constitutional matters and to report their views to the Prime Minister. This report must also advise on the level of support from Indigenous people and the broader community for each option. To date, panel members have visited more than seventy communities throughout Australia to ascertain the key concerns about this proposal, using the specifically developed communication aids such as a website (www.youmeunity.org.au), a DVD, a discussion paper, and a variety of informative papers. As of September more than 1000 submissions had been received. We have also appointed ambassadors and worked closely with the Australian Human Rights Commission, the National Congress of Australia’s First Peoples and Reconciliation Australia.

Australians, I told the Horsham group, have approved only eight out of forty-four referendum proposals since Federation in 1901 and opinions vary on the likelihood of success for a question proposing recognition of Indigenous Australians in the Constitution. 1

After this explanation, which drew satisfied murmurs from the men and women around the table, I faced the more difficult challenge of explaining what the Constitution states, what it does not state, and what it might state if a referendum were to succeed. My strategy to engage their attention, one I happened upon in Brunswick, Melbourne, when I found myself arguing with a beautifully youthful and idealistic Australian who had never read the document, was to read aloud particular sections, the historical versions amended by the 1967 referendum and the present versions.

The referendum held on 27 May 1967 involved three questions, two of which concerned the only two specific references made to Aboriginal people in the Constitution. The first question, referred to as the ‘nexus question’, is in Section 24 of the Australian Constitution, which required that the number of members in the House of Representatives be as near as possible to twice the numbers of members in the Senate. This section has the purpose of preventing the overwhelming of the Senate’s power in the case of a joint sitting following a double dissolution election. The question was:

Do you approve the proposed law for the alteration of the Constitution entitled ‘An Act to alter the Constitution so that the number of members of the House of Representatives may be increased without necessarily increasing the number of Senators’?

This question was rejected by the Australian voters and did not achieve a majority of states in favour. The second question concerned two clauses, Section 127 and Section 51 (xxvi), which were the only references to Aboriginal people in the Constitution:

51. 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, other than the aboriginal people in any State, for whom it is necessary to make special laws.

127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.

The question was:

Constitution

Queen Victoria’s Royal Assent to the Commonwealth of Australia Constitution Act, 1900, photograph by Jutta Hosel (photo of document), 1987, Image no. : A8746, KN15/12/87/12. Courtesy of National Archives of Australia.

Do you approve the proposed law for the alteration of the Constitution entitled ‘An Act to alter the Constitution’ so as to omit certain words relating to the people of the Aboriginal race in any state so that Aboriginals are to be counted in reckoning the population?

In Horsham, reading this aloud had an effect even more galvanising than on my young combatant in Brunswick. Instead of shocked silence, there were outbursts of protest and disappointment. This was ‘not what we voted for in 1967’, one said. Several of the older people in the room explained that they had voted for Aboriginal rights in the 1967 referendum. It was revealed that they were retired and enjoyed living in the country, but remained in contact with their friends and colleagues in high places in Canberra, suggesting perhaps they were once public servants. Another stated, ‘We thought we were voting for racial equality.’ ‘I had no idea that the Constitution said this.’ They spoke fondly about the Aboriginal and other activists of the 1960s who had successfully waged the ‘Vote Yes’ campaign. Their campaign lasted for ten years.2

All states voted in favour and 90.77 per cent of voters supported the amendment. It is said to be the most successful referendum in Australian history. A critical factor in the success of the 1967 referendum was that the ‘No’ case was not developed or prosecuted as part of the referendum campaign.

In 1967 Australians almost unanimously agreed that the words ‘other than the aboriginal people in any state’ should be deleted so that, like all other Australians, the Australian Parliament could make legislation for them. By amending the ‘race power’, to remove the words excluding Aboriginal people from the clause at Section 51, which sets out the powers of the Parliament to make laws, it enabled the Parliament to discriminate against us. It now reads:

Part V—Powers of the Parliament 51. 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.

After the expression of the racialist undertow by Pauline Hanson, and the popular acceptance of her flawed logic, the removal of the ‘race power’ may yet prove to be the most difficult challenge in reforming our Constitution.

The Silence about a Tricky Constitutional Issue

At this point in the discussion, my impulse was to ‘stick to the script,’ that is to say, remain silent, about certain issues not mentioned in the discussion paper issued by the expert panel. Before I can explain this, I need to outline the propositions agreed on by the expert panel (to the extent that the complex of views of such a group can be represented accurately in such a document). The numbering of the ideas about how to change the Constitution may give the impression that the preference of the expert panel members is for a ‘statement of recognition’ and/or a ‘statement of values’ in a preamble to the Constitution, and a preamble without any legal consequence.

‘Idea 1. Statement of Recognition’ might involve recognition in a preamble of ‘Aboriginal and Torres Strait Islander peoples’, distinct cultural identities, prior ownership and custodianship of their lands and waters. This is followed by ‘Idea 2. Statement of Recognition in the body of the Constitution’, which seems straightforward but may not be; and ‘Idea 3. Statement of Values in a preamble’. This last proposition has been formulated by members of the panel as a strategy for dealing with those who fear that the Constitution would no longer recognise them if it recognised Aboriginal people. Shades of Pauline Hanson.

The discussion paper states that this third option would involve ‘recognition of Aboriginal and Torres Strait Islander peoples alongside a description of the Australian people’s fundamental values, such as a commitment to democratic beliefs, the rule of law, gender equality, and acknowledgement of freedoms, rights and responsibilities’. It is also suggested that this statement could be ‘similar to the pledge that new citizens are required to make when they become naturalised Australians’. This approach was adopted by Queensland in its constitution in 2010. In all the state constitutions that recognise Indigenous people, there is a clause that specifically states that no legal meaning will attach to such recognition.

A statement may have legal consequences, depending in part on form and content and the panel has sought legal advice on this. The expert panel has asked for contributions from the public on a statement that might be included in the Constitution. The expert panel’s discussion paper goes on to elaborate the other ideas, only some of which are dealt with here. The paper states:

Many people, including Aboriginal and Torres Strait Islander representatives, believe that the amendment to the Constitution could and should go beyond a Statement of Recognition or Statement of Values and seek to address the potential for racial discrimination and lack of equality that they believe still exists in the Constitution. A final idea (Idea 7) contemplates inserting agreement-making powers between the Commonwealth and Aboriginal or Torres Strait Islander Australian communities in the Constitution.

What the proponents of the Statement of Values or recognition proposal know very well, but fail to mention, is that the fate of the referendum proposal for a republic in 1999 involved a preamble. It was drafted by the poet Les Murray, who had been appointed by John Howard, but whose language was so offensive to women and Indigenous people, that the only Aboriginal senator, Aden Ridgeway, was brought in to rewrite it. In any case, the question on this preamble to the Constitution was unsuccessful, achieving less than 39.3 per cent of the national vote.

It is when I came to the matter that many constitutional lawyers and politicians would prefer to keep in the Constitution—the ‘race power’—that my script became unmanageable. Much of the following is what cannot be said to the usually kind and thoughtful people who have been consulted by us expert panel members. The simple question of whether to recognise Indigenous people in the Constitution would become lost in a maze of issues and obstacles of a constitutional, drafting and political nature.

The Race Power, Preambles, Silence and Memory Loss

In 1998 the federal government used its ‘race power’ to implement John Howard’s so-called ‘10-point Wik plan’ to extinguish native title in all pastoral leases; it also used it to allow the Hindmarsh Island Bridge in South Australia to be built. The Ngarrindjeri women, who asserted that they are custodians of a sacred site on the island affected by the bridge proposal, lodged a case in the High Court seeking to overturn that legislation.

The central issue, answered by the six Justices sitting on the High Court, in the Hindmarsh Island case, is whether the ‘race power’ can be used to pass laws to the detriment of Aboriginal people or whether it can only be used to pass laws for their benefit. As Justice Callinan removed himself from the Bench in this case because of his previous involvement in the matter, the answers provided by the remaining six Justices do not clarify the matter sufficiently to provide guidelines for other legislation. While it was acknowledged that Australia’s Constitution was conceived with racist purposes, two Justices found that governments could not act with manifest abuse of power, and one, Kirby, found that no act could be racially discriminatory. The other three found that legislation enacted by a state could be amended. Another view is that a majority on the High Court found that the Constitution permitted laws to be made to the detriment of the people of any race—at least that is the interpretation of the judgment followed by the Howard government. This is a subject that the expert panel would prefer not to discuss for fear that the shock jocks and opinion columnists who generated public hysteria about Aboriginal ‘women’s business’ during the Hindmarsh Island case may take up the cudgels again.

However, there is no unanimity among the expert panel members on these matters. Megan Davis is an Indigenous constitutional lawyer and legal academic with a sound grasp of the Australian Constitution and its failure to acknowledge the existence of Aboriginal and Torres Strait Islander peoples. Like many others, I agree with her on the most significant issue to be put to a referendum on the question of whether or not to recognise Indigenous Australians in the Constitution. Ten years ago, after reading the work of constitutional lawyer George Williams, I advocated in my Professorial Oration and the Centenary of Federation Alfred Deakin Lecture that the ‘race power’ should be removed. Davis puts it this way: ‘One of the strongest cases for constitutional change is deleting or amending the races power. It is unacceptable for a modern liberal democracy like Australia to have a races power in the Constitution.’ 3 She argues that it is most important to include a non-discrimination and equality provision in the Constitution and that this proposal is more likely to succeed at a referendum than other proposals.

This is in contrast to the mealy-mouthed proposal for a preamble that acknowledges the existence of Indigenous Australians but would have no legal effect. Legal advice to the panel members notes that a preamble ‘may not be designed to explain anything that follows in the Constitution, given it would be inserted long after the rest of the Constitution was enacted’.4 It could be an introduction to the Constitution with reference to historical fact and other issues, such as symbolic statements about the nation and its purported characteristics, such as ‘values’. Both Julia Gillard and John Howard, the prime ministers who have supported constitutional reform to recognise Indigenous Australians, have stated their preference for a preamble.

Prime Minister Julia Gillard, 2010:

Now is the right time to take the next step and to recognise in the Australian constitution the first peoples of our nation; now is the right time to take that next step to build trust and respect, and we certainly believe that constitutional recognition is an important step to building trust and respect, it’s an important step to building and acknowledging that the first peoples of our nation have a unique and special place in our nation.

Former prime minister John Howard, 2007, during the election:

My goal is to see a new Statement of Reconciliation incorporated into the preamble of the Australian Constitution … I would seek to enlist wide community support for a ‘Yes’ vote. I would hope and aim to secure the sort of overwhelming vote achieved 40 years ago at the 1967 Referendum. If approached in the right spirit, I believe this is both realistic and achievable.

‘What will ultimately matter is the wording used,’ the lawyers have advised. Further, as George Williams has pointed out, it would be more difficult to find the wording for such a preamble that would be agreed to by a majority. The left might oppose a preamble that used the word ‘settle’ rather than ‘invasion’ and the right might oppose a preamble that referred to the children forcibly removed from their families as the ‘stolen generations’. Writers such as Keith Windschuttle and his supporters would oppose any reference to the history of violence against the first Australians. Fundamentalists from various religions might oppose a preamble that failed to mention a monotheistic god. Then we have the problem that some are arguing for a ‘statement of values’ in a preamble. The idea of a universally accepted ‘value’ is notoriously slippery.

We should not find it odd that the proponents of the preamble option rarely suggest that such ‘values’ include respect for human rights. The text of the preamble proposed in the 1999 referendum on the question of a republic should remind us of the danger of this course. The final version read:

­With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of Government to serve the common good. We the Australian people commit ourselves to this Constitution proud that our national unity has been forged by Australians from many ancestries; never forgetting the sacrifices of all who defended our country and our liberty in time of war; upholding freedom, tolerance, individual dignity and the rule of law; honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country; recognising the nation-building contribution of generations of immigrants; mindful of our responsibility to protect our unique natural environment; supportive of achievement as well as equality of opportunity for all; and valuing independence as dearly as the national spirit which binds us together in both adversity and success.

‘With hope in God’? What if you are a Buddhist or Aboriginal, or a follower of some other non-monotheistic religion, or an atheist, or an agnostic? This Howard-era howler aside, and to give Les Murray his due, there are some nice turns of phrase, such as ‘many ancestries’.

Some proponents of the preamble concept do not agree that the ‘race power’ is an unacceptable provision in the constitution of a liberal democracy. It has been proposed that the clause remain so that legislation could be passed by the Parliament to deal with matters of national security and other ‘just in case’ scenarios.

How it is proposed to identify the ‘race’ of any particular person is never explained, however, nor how abuses of power might be prevented if officials had a free hand. Some people speak in mumbled tones about ‘Muslims’. When I point out to them that ‘Muslim’ is not a racial category but a religious one, they are strangely silent. An unknown number of Australian citizens and immigrants with permanent residency status have been held unlawfully in immigration detention centres by the federal government over the past ten years. There were a few high-profile cases involving Cornelia Rau, a German citizen with Australian permanent residency detained for months in a prison as a suspected illegal immigrant; Vivian Solon, an Australian who was unlawfully removed to the Philippines by the Department of Immigration and Multicultural and Indigenous Affairs in July 2001; and ‘Mr T’, a mentally ill Australian citizen originally from Vietnam who was detained three times. The federal government accepted liability for these cases, but the threat of such abuse of power by officials is a relevant issue in considering the ‘race power’, the findings of the High Court in the Hindmarsh Island case, and the question of how we, the citizens, would want our Constitution to read as the foundational document of the nation.

Section 25 Read Aloud

Section 25, which was not the subject of the questions put in the 1967 referendum, and which remains in the Constitution, is more difficult to comprehend. I read this aloud to the group at Horsham:

25. 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.

According to constitutional law scholar Brian Costar, this ‘obscure, puzzling, contested but largely neglected Section 25 of the constitution … mandates not who should have the vote but how many House Representatives’ divisions each state shall be entitled.’ Some constitutional lawyers assert that it is ‘a mild deterrent to discrimination on racial grounds’, while others view it as ‘odious and outmoded’. Costar’s thinking on this clarifies the debate for those of us who are not trained in the dark arts of legal jousting:

to assume that the Section has been voided by the passage of legislation deeming discrimination on the grounds of race illegal would be false for the simple reason that such legislation may be repealed or amended by parliament. Furthermore, the right to vote is not explicitly enshrined in the constitution and Section 30 has been interpreted as giving to the Commonwealth parliament the authority (subject to the constitution) to determine its electoral procedures. We can only speculate as to whether any future legislation restricting the right to vote on grounds of race, gender, class, etc. would be held by the High Court to be in breach of the ‘directly chosen by the people’ words of Sections 7 and 24. Given that uncertainty, a case can be mounted that Section 25 should be retained until the right of citizens to vote is unambiguously guaranteed in the written constitution or firmly embedded by judicial review in the unwritten one.5

However, to bring the matter to a close, Costar, among many others, supports its removal for at least two reasons. He cites Justice Gibbs, who ‘held in McKinlay’s case (1975) that Section 25 could be interpreted in such a manner as to deny the franchise to certain people on the grounds of race. Second, “race” is now such a discredited biological and social construct that its citation in a democratic constitution is undesirable.’6

The Odds: How to Lose a Referendum Question

The most difficult work for the panel members is the development of the concepts for a referendum question or questions as to how the Constitution could be amended to recognise Indigenous Australians. We are required to report to the Prime Minister on the form of constitutional change and approach to a referendum likely to obtain widespread support, and the implications of any proposed changes to the Constitution. This has involved seeking advice from constitutional law experts.7

In her paper ‘Indigenous Rights and the Constitution: Making the Case for Constitutional Reform’, Davis succinctly recounts some of the background to the appointment of the Expert Panel on Constitutional Recognition of Indigenous Australians. Two previous prime ministers committed themselves to constitutional reform for such recognition: John Howard and Kevin Rudd.

Recently, Prime Minister Kevin Rudd revived John Howard’s 2007 pre-election proposal to amend the preamble to the Australian Constitution to recognise Aboriginal and Torres Strait Islander people. Rudd’s announcement was prompted after Yolgnu and Bininj elders presented him with a Statement of Intent at the Federal Government’s Community Cabinet meeting in Yirrkala, Northern Territory. Prior to that, constitutional reform had been raised by participants in the Indigenous stream at the Federal Government’s 2020 Summit in Canberra and at the Barunga Festival in the Northern Territory. In fact, it has been a perennial focus of unfinished business between Indigenous peoples and the state.8

There are two dilemmas in this worthy goal, however, as Davis has noted. One is the desire of conservatives and naive liberals to keep the ‘race power’:

Given the presence of section 51 (xxvi)—the races power—in the Constitution that permits discriminatory legislation on the basis of race, it is a strange symmetry indeed to have a symbolic showcase like the preamble lauding the first peoples of Australia as being important to the Australian state, yet an operative provision that permits discrimination on the basis of race. Moreover, only eight out of 44 referendums have been successful in Australia’s history and the difference between success and failure has been bipartisan support. 9

There is also the fear, based on views expressed to date, that ‘… it will be acceptable as long as the Australian state doesn’t have to give anything up. As Tony Abbott argued about the preamble proposal, he is supportive as long it is done “without in any way detracting from the role of the rest of us”.’ 10

Given this state of affairs, there are some of us who would want to include among the concepts submitted to the Prime Minister at the end of this year, that a referendum not be held on this question if the outcome most likely is a preamble without legal effect, or Clayton’s recognition of Indigenous people in the Constitution, along with the retention of the ‘race power’. Davis notes in this regard that ‘the public conversation about the preamble proposal to recognise Aboriginal and Torres Strait Islander peoples is based on’ the premise ‘that recognition is acceptable as long as it has no effect or creates no legal rights’.11

There are several reasons for my own hesitation about a referendum proceeding on this matter. The obvious one is that, should the referendum question be defeated by the voters, it would not be put before the Australian voters again in my own lifetime. There is also the disappointment and bitterness that such a defeat would engender throughout Aboriginal Australia. Another reason is that to set the standard too low—to appear to be complicit in a referendum question that proposed only a preamble with no legal effect—would be, even if successful, a slap in the face for many Aboriginal Australians whose aspirations are for so much more. Take the Yirrkala Petition, for example, the latest in a litany of requests for respect for Aboriginal people from the Australian polity:

The Yirrkala Petition

We, the united clans of east Arnhem Land, through our most senior dilak ‘elders’, do humbly petition you, the 26th Prime Minister of Australia, in your capacity as first amongst equals in the Australian Parliament, and as chief advisor to Her Majesty Queen Elizabeth the Second, to secure within the Australian Constitution the recognition and protection of our full and complete right to: our way of life in all its diversity; our property, being the lands and waters of east Arnhem Land; economic independence, through the proper use of the riches of our lands and waters in all their abundance and wealth; control of our lives and responsibility for our children’s future. These rights are self-evident. These rights are fundamental to our place within the Australian nation. We ask for your leadership to have the Commonwealth Parliament start the process of recognition of these rights through serious constitutional reform.12

That this process of considering constitutional reform would not achieve the goals of the Yolngu or similar Aboriginal goals elsewhere is not by itself a reason for delaying the referendum. The goals of the Yolngu would be more easily achieved by legislation and by continuing to reach agreements such as the mining agreement with Rio Tinto Alcan.

The Process of a Referendum

The timing of the referendum is also a strategic matter for the panel to consider. To amend the Constitution, a bill proposing the amendment must first be submitted to and passed by the Parliament. Between two and six months later the proposal can then be put to Australian voters at a referendum. For an amendment to succeed a ‘double majority’ is required. This means that a majority of voters nationwide need to vote ‘yes’ and a majority of voters in a majority of the six states must also vote ‘yes’ (territory votes are counted in the national total but not in any state figure). This timetable would appear to be unachievable given the state of national politics as I write. It was, after all, the Greens members of the House of Representatives and the Senate, who, in negotiating the terms of power when a ‘hung’ Parliament was the election outcome in 2010, extracted a commitment from Julia Gillard to hold a referendum on Indigenous recognition within this term of Parliament. The Greens politicians are amenable to altering this time table. It is conceivable, however, that the opposition would oppose the referendum question and argue a ‘No’ case,13 or argue for a limpid preamble, as the election cycle closed and the likelihood of a landslide vote against the Gillard government, given the concerns about manufacturing industry, the carbon tax, the mining resource tax and the state of the economy—not to mention asylum seeker policy.

This is why the book People Power: The Future and History of the Referendum in Australia by constitutional lawyers George Williams and David Hume is essential reading at this time. Among their many findings based on detailed research of referenda voting, questions, patterns of voting and many other matters are several crucial points to be considered in framing a question for a referendum on Indigenous recognition. For instance, no referendum question has passed without bipartisan support. A ‘Yes’ campaign that is mismanaged, weak, smothered by other priorities, or not strongly supported by the government detracts from the chance of success. A referendum question that contains too many amendments to the Constitution has less chance of succeeding.14 State governments can influence voting intentions, and are unconstrained in what they can say about referendum proposals. Three dissenting states can adversely affect strong overall national support as well as reduce the likelihood of recording the support of a majority of the states as required by the Constitution.15

Another critical matter is the cost of a referendum, estimated at present at about $70 million. This is why the preference of any government in our straitened economic circumstances would be to hold a referendum at the same time as a federal election. The next federal election, when voters consider whether or not to vote for the Gillard government again, is not the time to hold this referendum.

Labor’s record of success at referenda is one from twenty-five attempts. This reflects Labor’s history of proposing more referenda than any other party and a lack of bipartisan support for Labor’s proposals.16 Williams and Hume list five keys to a successful referendum: bipartisanship, popular ownership, popular education about the proposal issue, sound and sensible proposals, and funding and neutrality issues (or bipartisanship and an absence of party preference for constitutional change) in the process. Reading their book has made me hesitate. Should we wait until after a popular education campaign on the complicated issues involved in the question of Indigenous recognition, one that would need to be at least as persuasive as the ten-year campaign leading up to the 1967 referendum by a coalition of Aboriginal activists and other Australians concerned about Aboriginal rights? At this stage, I am inclined to recommend that we wait.

Perhaps the most important work of the expert panel will be our encouragement of, and providing information to Reconciliation Australia to wage such a campaign in the coming years. If a referendum on this question does proceed now, the outcome is likely to be no more than a change to the Preamble. It is our historical burden that we could expect nothing like the acknowledgement of aboriginal people in the Canadian Constitution Act 1982:

Part II—Rights of the Aboriginal Peoples of Canada 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

If I could return to Horsham and continue the conversation with the people I met there at the consultative meeting, I would want to say all these things and ask them what they think about them. They are not the people that some of our members and advisers fear; they are not the people who listen to Alan Jones and head to Cronulla Beach to have a ‘race riot’. It is through explaining these issues to these kind and thoughtful people and others like them in far-flung parts of Australia that I have come to understand the difficulty of constitutional change, the problem of unintended consequence, and the invisible power of the idea of ‘race’ in our body politic. But so have other expert panel members. At our last meeting, it was agreed not to proceed with the idea of a Statement of Values, and more serious thought was given to the ‘race power’ than in earlier meetings.

There is a logical approach to delineating the question or questions that we would put to the Prime Minister in our final report, and the logic is one that confronts the problem of ‘race’. How could it be defined in the twenty-first century, hundreds of years after it was first developed in the imperial era as the British and Europeans ventured across the seas and discovered people of colour and classified them as the ‘inferior races’. How, when the human genome has been thoroughly investigated and mapped, proving convincingly that we are one species with millions of variations, not just the crude categories of ‘race’ developed to justify colonialism: Negroid, Mongoloid, Caucasoid, and my favourite, Australoid.

The danger in saying all this is that a venal politician could insist that the referendum proceed, precisely so that it would fail at the polls. The balance of saying these things against silence is then not the question. The question is: how can we sustain the opportunity for a referendum on this question to be put to the Australian people and the states in circumstances that are not riven by ‘dog whistle’ issues in the racialist Australian politics that arise with each electoral season?



© Marcia Langton 2011

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