During the 2013 election campaign Tony Abbott made a promise to hold a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. A referendum is supported by both the Australian government and the Labor opposition. In March 2015 Senator David Leyonhjelm gave a speech in which he rejected the call for reform to constitutionally recognise Aboriginal and Torres Strait Islander peoples. Following this speech Marcia Langton, chair of Australian Indigenous Studies at the University of Melbourne, agreed to interview Senator Leyonhjelm about his position on constitutional recognition. The interview took place in June 2015 and an edited transcript appears here.
Marcia Langton: First, tell us a bit about yourself; there are various versions of your biography and they wildly differ.
David Leyonhjelm: I was a veterinarian. I graduated in 1974. I practised for a few years, six years or something like that. Then I went into the animal health pharmaceutical industry. The political history is, I was a member of Young Labor when I was young, twenty, nineteen, something around that. I worked on the 1972 ‘It’s Time’ campaign, in support of Gough Whitlam. I was eligible for conscription and that was a major motivator for me to support Labor. There were also some social issues that were of concern to me at the time. People were being prosecuted over abortions and there were a couple of others but I just can’t think what they were at the moment. There were social issues that animated my thinking and made me realise that I didn’t like the government intruding in people’s private lives.
I joined the Labor Party for a few years, then went overseas and travelled for three years. I just spent a lot of time in Europe, and Africa in particular. I realised that my learned views on socialism were wrong and that I needed to reassess, reapproach my thinking. So when I came back from overseas, I initially joined the Liberal Party, because I was economically liberal by that stage. Then I realised the Liberal Party wasn’t really liberal in lots of areas that I thought it ought to be liberal; so I never really got very serious about my Liberal Party membership.
Then I joined the Shooters Party in New South Wales, it was just a state party at that time. But after a few years of the Shooters Party, I realised it wasn’t very liberal on other areas. They were expecting to be left alone by the government and arguing a liberal stance on firearms, but then they were very intolerant when it came to other issues.
I then realised that wasn’t my natural home and so I joined the Liberal Democrats. Liberal Democrats at the time I joined was quite a small party, it was only registered in the ACT, and obviously we needed to do something about that so I and a few colleagues set about boosting membership. It’s gone from probably 150 members when I first joined it to 4500 members now.
ML: Just to check a few things. You were born in the Wimmera?
DL: In Nhill in the Wimmera, Victoria, that’s right.
ML: And your parents are Swedish?
DL: No, I’m a fifth-generation Australian. My name is Swedish, but no, my parents were born in Australia as well and so were their parents.
ML: Do you have any attachment to your Swedish origins?
DL: Yes, I do. My family is a noble family in Sweden. My name means ‘lion on helmet’ or ‘lion-crested helmet’ or something along those lines. An ancestor of mine in Sweden was made a baron by the king. It was back in the nineteenth century. And the custom in the Swedish system is that all males who have the name Leyonhjelm are therefore barons and all women, before they marry and change their name, are baronesses. So in Sweden, I am a baron. I occasionally have correspondence from Sweden seeking updates on my status and confirmation of my details and so forth, because there is a record of the Swedish noble families maintained by some sort of government department in Sweden.
ML: Now, let’s go through your position on constitutional recognition of Indigenous Australians. So, tell us what your views are there, please.
DL: I am passionately anti-racist and I don’t care whether it’s positive or negative racism, I’m passionately opposed to it. I do not accept that it’s legitimate to treat people differently on the basis of race. So my party has absolutely no policies specific to Aboriginals or Indigenous people. We don’t recognise a difference. If people are poor and require help from the safety net, it doesn’t matter what race they are, what colour they are, who they are, they should receive it.
If children are missing out on education, it doesn’t matter what race they are, what colour they are, anything like that, they should receive assistance and something should be done. We would be happy to remove all references to race from the Constitution and we would not be happy about adding any references to race to the Constitution. So there are two clauses in the Constitution that mention race; we’d be happy for them to be removed. And we would not be happy about adding any references to race to the Constitution.
ML: I don’t think anybody proposes that, but the second part of what you’re saying …
DL: The preamble is part of the Constitution, that’s the only thing.
ML: Well, the preamble isn’t part of the Constitution. The preamble is part of the Westminster Act. Our Constitution doesn’t have a preamble. In any case, let’s go on and set out your views more clearly. What are you proposing? That there is no referendum? What exactly is your proposition?
DL: There are two ways of looking at it. One is in a purist sense and in a purist sense, if there were to be a referendum which would remove reference to race from the Constitution in those two locations and that would be the only change. In practical terms, I’m not sure that that warrants the effort and the fuss that will occur as a consequence of having a referendum on just this issue. And referenda have a history of not being passed and it would not be a good thing to put those two items up and not have them passed. So, from a pragmatic point of view, I’m somewhat attracted to the idea of doing nothing.
ML: Section 51 (xxvi) is the difficult bit. So let’s go there. The relevant text is as follows:
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:
So the problem with that part of section 51 is that if you simply remove it, then the parliament can’t make laws for Aboriginal and Torres Strait Islanders.1 Let’s just forget for the moment, this idea of race, let’s just treat them as groups of people that have been the subject of legislation historically.
DL: So, I don’t think that’s a legitimate basis for legislating. If we said the reason we want to do something is probably largely or even exclusively relevant to Aborigines is because of disadvantage in some area, then you deal with the disadvantage. If it’s to do with geography, then you deal with it on the basis of their geography. If you deal with it in terms of property, land for example—and I’m a big believer in private property as a potential solution to a lot of disadvantage in Aboriginal communities—then you do it on the basis of private property. The government is entitled to legislate on private property, on health, on education, on various disadvantaged parameters. But to do so on the basis of this law only applies to people of a certain race. That’s the bit that I’m opposed to.
ML: Okay. Well, let’s now just turn to the problem. What if Aboriginal and Torres Strait Islander people were not treated as a race, but as first peoples? I think most of the Aboriginal people would consider this problem seriously. Most of us would say, ‘Okay, terrific! Let’s get rid of the race sections of the Constitution and let’s have the Constitution not treat us as a race, but treat us as first peoples.’ So, it has got nothing to do with race, it has to do with, say, particular cultural traditions or types of property that relate to our cultural heritage that originates prior to 1788. That’s a historical fact and not anything to do with race. Let’s just remove the whole concept of race, because I find it offensive as well.
DL: Yes. Well, I’m not as opposed to it as I am to the legislation on the basis of race argument, but I do have a couple of problems with it. One would be that it assumes that history—historical fact is so certain that we can legislate that it is a fact. But the point I’m making is that if at some stage it emerged that there were a people who were in Australian land prior to what we now recognise as Aboriginal and Torres Strait Islanders or whatever, what have we achieved by saying the current ones were the first people? I don’t know that it achieves anything or what exactly we accomplish by saying that we’re so certain of history that we should enact legislation. That’s point number one that concerns me. I just don’t think it’s warranted.
The second point that I would make is that my party and I are very firm believers in equality before the law, and even to open the door to a separate position for any Australians before the law concerns us. Now, if we say, ‘Okay. Well, the Aboriginal people were the first inhabitants of Australia,’ it suggests that there’s a precedence aspect to it. Does that mean that other people who were here before subsequent people should have any distinction?
ML: First of all, nobody is proposing that there would be any justiciable consequence of recognising the status of Aboriginal and Torres Strait Islander people as first peoples. I mean, that’s precisely what, I think—
DL: There are arguments about that. Are you confident about that?
ML: Yes, I’m confident about that, because it’s very important. Let me just say that the reason Noel Pearson has developed his concept with the highly regarded constitutional expert Professor Anne Twomey is precisely to get around the objection that this issue should not be justiciable or reviewable by the courts. And so Anne Twomey’s drafting precisely excludes that.
Let’s go back to this issue of why we would recognise anybody’s historical position in the Constitution. Well let’s just take your status as a baron in Sweden, right? Now, I don’t know if that’s legislated for, but it would certainly have the status of what we would call in a common law jurisdiction, it would have the status of common law or traditional law. And so it would have something akin to a constitutional status.
But then let’s just move on to say the Sami in Sweden have their own parliament, which is an official parliament in Sweden. The only country that has a Sami population that doesn’t recognise them is Russia. The other three countries, Norway, Sweden and Finland recognise them, and they have their own parliament and they have legal rights as Sami. And I wouldn’t be able to tell the difference between you and a Sami person.
So it’s got nothing to do with race, it has to do with history, ancestry, cultural practice and traditions like reindeer herding, which are legislated for in three of those countries. So, have you considered the, let’s say, the comparative analogy of Sami and first peoples in Australia?
DL: No, I haven’t. I’ve looked at the Canadian situation, but no, I haven’t looked at Scandinavia at all. The other aspect to it though, Marcia, is, I guess I’m probably a pragmatist in many respects in terms of wanting good outcomes. It would be symbolic, entirely symbolic. So how would it help reduce drug dependence, alcohol dependence? How would it help an Aboriginal kid grow up and win a Nobel Prize in science or literature or something like that? I can’t see it making one scrap of difference to that. And those are the sorts of things that I would like us, as a society, and me in parliament here to work towards.
ML: Let me give you a couple of examples that have taken up a lot of my headspace as I considered what kind of country I live in. You could have a look at the new South African Constitution, the post-apartheid constitution, that’s had an enormous impact on the way that black South Africans see themselves and also how white South Africans see themselves. And I think there’s been a very real, practical and tangible outcome of that constitutional change. I would say the same thing of the American Constitution. I would say the same thing of the post-civil war developments in the United States of America.
I think the way that we conceive ourselves in writing as polities does have practical consequences. I think this whole symbolism argument is a crock, because if people are going to stick to that position, to its logical conclusion, why would we even have constitutions? And even while the conservatives say that our Constitution is a rule book for government and nothing more, the fact of the matter is that it does establish a polity with a certain feel and look. And let’s have a look at the apology. Now everybody said, ‘What impact is the apology to the stolen generations going to have?’ Well, I know from firsthand experience, from talking to my friends, that it has had a profound impact on them and their families. An apology means a great deal.
DL: Yeah. Well, maybe it does. But it distresses me that forty years ago I was hearing horrible stories about disadvantage and death rates, incarceration rates and so forth in Aboriginal societies in Australia and I’m still hearing similar sorts of stories today. And I think, okay, we have got more important things to do than engage in—well, I know you don’t like the term, but symbolism. We’ve got more important things to do. We’ve got practical gains to be made and it concerns me that diverting attention into symbolic activities takes our eye off the main game, which is to achieve practical benefits.
ML: I don’t think an apology in any way prevents us from continuing that work. I have been one of the people behind the very concept of welfare reform for about twenty years. So I actually worked with Andrew Forrest in coming up with the Healthy Welfare Card proposition. His starting principle is that to the greatest extent possible, that any of his recommendations must apply to all Australians, right?
DL: Yes, that’s right. Not just Aboriginal, that’s right.
ML: I think it’s tremendously important to rid our nation of this rubbish concept of racism. But the Aboriginal and Torres Strait Islander people are different and are the only people in Australia who can claim ancestry prior to 1788 in this country. And that has very real consequences for our native title rights and other matters that are legislated for, and it is really important, I believe, to conceive of those rights as rights of first peoples, not as rights of a racial group and we’re just over the racial thing as well. I think we’re more entitled to be sick of it than you are.
DL: Yes, fair enough. I respect the fact that you’ve worked on this, you’ve thought about this and your arguments are better formed than mine. One of the characteristics of being in this job is the constraints it places on thinking too far ahead. So, I’ve taken a position that I don’t want any references to race in the Constitution because I hate racism.
ML: I agree with you on that.
DL: And so I have, more or less, transferred that across to the first peoples argument as well. I wouldn’t suggest that I am unmoveable on that issue but I think probably it’s a work in progress.
ML: So would you be prepared to join in those discussions and sort out your concerns with the group of people that we’re talking to?
DL: Well, if the only thing we’re talking about is this first peoples discussion, yes. I’m open to engaging on that one. My thoughts are not hard and fast on that one. The only thing that I wouldn’t want to discuss would be my feelings of removing race from the Constitution.
ML: Yeah. Well, I think we’d agree with you on that. Thank you very much.
DL: My pleasure.
- Under the Constitution in 1901, ‘the people of the aboriginal race’ were excluded from part (xxvi). The referendum of 1967 removed the exclusion. This change gave the Commonwealth the power to legislate for the Aboriginal people when ‘it is deemed necessary to make special laws’: see The Australian Constitution, annot. Cheryl Saunders, Constitutional Centenary Foundation, Melbourne, 1997, pp. 48, 54.