Monday, January 23, 2012

good grief

A panel investigating ways to recognise Aboriginal and Torres Strait Islander Peoples [A&TIP] in the Constitution has released its long awaited report, complete with recommendations of what to change, and the strategy most likely to help a referendum on the changes succeed.*

I have written in two previous posts** about the 1999 referendum proposing a preamble to acknowledge Indigenous Australia in the constitution. Quite simply the wording of the preamble was an insult, and in the absence of any practical steps to help those Indigenous Australians who need help, a token gesture likely, in the long run, to do more harm than good.

Constitutional changes are worded specifically for a reason, yet once again the movers and shakers say/imply that if Australians do not pass this referendum, Indigenous Australians should take it to mean we don’t care a toss about them or the truth.

In my lifetime, the most common objection to a bill of rights has been that these things are hard to frame in a way that they cannot be misinterpreted, and the last thing we need is a high court – presumably stacked by the "other" major party – making smart-arse interpretations of a binding document.

But let’s be sillier and sillier: The next referendum will be looking at changes to the constitution proper, not just at a non-binding preamble acknowledging our shaky beginnings. So much for the danger of high court challenges. As I've said before: Everyone is equal before the law - if they can afford it.

There is soooo much wrong with these recommendations that I scarcely know where to begin. But, obsessed as I am with issues of race, I’ll start somewhere anyway, and I shall start with the dreaded …

Section 51

In the beginning was the word, and the word was superior. At the close of the 19th century, Britain was reluctant to pass a bill approving an Australian constitution referring directly to a White Australia Policy. [Well, they did have an Empire to run.]

Section 51 of the new, approved constitution originally said [in 1901]:

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:-
The people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.

This section was not really about Aboriginals, but about solving other “problems” related to keeping Australia white.

The words “any race” could naturally include Chinese, (Asian) Indians, indentured labourers from the South Sea Islands, “Ghans” or Malays (though not New Zealand’s Maori who, because of the Treaty of Waitangi, were British citizens).

In 1901 the new federal government agenda included – amongst other things – repatriation of indentured labourers who had been lured to Australia from the Pacific Islands.

One of the 1967 referendum questions asked voters if they wanted to alter the wording of this Section 51, to remove the phrase banning “special” laws for Aboriginals.

As a result of the yes vote in 1967, we now have S 51 [xxvi] which says
The people of any race, for whom it is deemed necessary to make special laws:
Honestly not much of an improvement, as it simply elevated Indigenous Australians to the status of all the other inferior races.

But to be fair, in 1967 most Australians believed that by deleting the reference to Aboriginals, the federal government was finally ready to step in and take over Aboriginal Affairs from the states. Sadly, the federal government had already had power over Aboriginal Affairs in the Northern Territory since 1912 and hadn’t done a great deal for Aboriginals there, so there was no reason to expect any improvement.

The new improved section 51

It has now been recommended that we ditch the 1967 bit, inserting in its place a touchy feely 51A which talks about Recognising first occupants, and Respecting continuing cultures and languages etc and – Acknowledging that we’ve done bugger all to help in any practical way to date –  parliament should now – for their advancement be able to
make laws …with respect to Aboriginal and Torres Strait Islander Peoples

At least the panel recognises we are talking about many peopleS, which is more than half our hard-nosed journalists have done.

So far so good; we’ve rearranged the furniture [I don’t dare refer to sinking ships just now] and achieved a glow of smug self-congratulation.

Because we’ve “Acknowledged” the need for advancement of A&TIP, the old legal interpretation catch – the intention is in the words – is covered. We can’t make special laws for A&TIP if they are not linked to advancement.

But just to be on the safe side there’s to be a new section 116A which outlaws discrimination
on the grounds of race, colour or ethnic or national origin
unless for
overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

This might be meaningless pap, or it might be useful. But I could imagine a certain disaffected little corporal identifying strongly with wording like this some time around 1920.

Where does it say we have the right to over-ride a group’s culture if one or more of those cultural practices are undesirable? [Female genital mutilation would probably be too extreme an example…]

One really nice thing about being able to make laws for Aboriginal advancement is that we can still stop “their” dole payments if they don’t send their kids to school. This is important, because otherwise they will use these enormous sums of money to buy grog and drugs*** or to travel across the country to attend to ceremonies or perhaps even spend up to ten months of the year going to funerals or even spend 3 or 4 months of the year trapped by closed [soggy] roads.

Please bear with me, I’m almost done bitching!

Notwithstanding the total indifference of major parties to the possibility of using a bilingual approach to the education of Indigenous Australians, we might soon have a section 127A which says Australia’s official language is English and A&TIP languages are part of our national heritage.
Perhaps the National Trust might get involved?

Fixing the woopsie

Section 25 has got to go. It was there to help calculate how many politicians we should put up with, and this had to take into account whether the people of any particular race were barred from voting in state elections.

I lied – one more bitch to go:

This bit – which I just love – goes to the heart of my problem with the implication that if I vote NO it’s because I don’t care:

“In the interests of simplicity, there should be a single referendum question in relation to the package of proposals…”

Seriously, when will these people drop their delusion that everything can – or worse yet – should be controlled by legislation? No, it is NOT necessary to say yes in order to protect existing legislation such as that relating to land rights, because if we already have legislation on land rights then it must have been possible.

Put forward the preamble proposed before John Howard got his hands on it, and I’ll vote yes. In the meantime, Andrew Bolt is going to have a field day.

subsequent post explaining why I voted no in 1999

***from whom? 


  1. Well said but its very complicated indeed :-).

  2. Each country has it's problems, we have others in Belgium.

  3. Hi Windsmoke. It is complicated, isn't it!

    Hello Gattina, perhaps because it is a small country in size, Belgium's problems are different - I certainly hope the problems are no worse than ours!

  4. It is a problem and I often wonder if government or opposition really care or are they just fishing for votes.

  5. Diane, I have a strong suspicion they are fishing. Lord knows what the enquiry cost. Are they trying to outdo Rudd's apology?
    In any case, it sometimes seems the more words they put into legal documents, the less control we have over commonsense. [But of course when I get carried away writing too many words, the world is still safe :)]

  6. The current elected are probably scared witless that the whole thing will be 'finished' on their watch - so they'll have to cop any political fallout. Stirring up the controversy means they're seen to be 'doing something'; the opposition accused of 'being negative' and takes the blame if nothing comes of it; AND there's therefore no need to ACTUALLY do anything because we're now a nation where talkfests and drafting legislation are now our substitutes for action.

  7. Red, I find myself repeatedly repeating the mantra "A camel is a horse designed by a committee."
    In fact, it's all a little liking wetting the bed - feels warm and fuzzy but only briefly.