False Equality


SHIREEN MORRIS

The Uluru Statement from the Heart seeks to resolve the fundamental moral problem that has tormented our country since 1788: how do we create a fairer relationship with the First Nations of this land?

The problem was left unresolved in 1901: Indigenous peoples were not represented in the constitutional compact that made the Commonwealth. It was not answered in 1967: the referendum empowered parliament to make laws for Indigenous people, but it did not empower Indigenous people with a fair say in respect of those laws. It was not resolved in 1999: the proposed symbolic preamble would have changed nothing, and it failed at referendum.

Indigenous Australians have now formed a historic consensus. They ask for constitutional recognition through a First Nations voice in the Constitution. Not a racial non-discrimination clause, which was opposed by politicians. Not uncertain symbolism in the Constitution.

They ask only to be heard in decisions made about them. A practical reform. Not a veto, but a voice.

This essay responds to a quintet of objections to the Uluru Statement: the ‘equality’ objection of the Institute of Public Affairs (IPA); the ‘identity politics’ objection of Greg Sheridan; the ‘personal responsibility’ objection of Andrew Bolt; the ‘all heart and no head’ objection of Rowan Dean; and the ‘secret, separatist sovereignty’ objection of Keith Windschuttle.

These objections share common threads. Each promotes values of equality over division, unity over separatism, secure sovereignty over sovereign threats, responsibility over passivity, and rationality over sentimentalism. Each of these values is legitimate and important. With respect to the Uluru Statement, however, the objections are incorrectly applied.

Properly understood, the Uluru Statement from the Heart respects and appreciates these principles – it does not contradict them. It offers a way to recognise and empower the First Nations of Australia to take responsibility for their affairs, while upholding the Constitution, respecting Crown sovereignty and unifying the country.

The equality objection

Would a First Nations voice in the Constitution divide our nation by ‘race’ and undermine the principle of equality? Or would it create a more complete Commonwealth: addressing injustices of the past and bringing the three parts of our nation – our ancient Indigenous heritage, our British institutional inheritance, and the multicultural character of our society – into deeper accord?

The equality objection rejects constitutional recognition on the grounds that the reforms would create division, disunity and inequality in our otherwise fair and equal Constitution. The objection is self-contradictory and factually incorrect.

John Roskam and Simon Breheny of the IPA reject the Uluru call for Indigenous Australians to have a guaranteed say in laws and policies made about their affairs because ‘all Australians are equal. This principle is the basis of our freedoms and a cornerstone of the Australian constitution. Our nation’s founding document should unify us – not divide us.’ They argue the Uluru proposals would ‘divide Australians on the grounds of their racial identity’.¹

That Australians should be equal and our Constitution should unify, not divide, are uncontroversial propositions. Roskam and Breheny are correct to assert that ours is a successful and enduring Constitution underpinning a fair democracy – for most Australians.

The problem is twofold. One, the Constitution has not ensured fairness and equality for Indigenous Australians. Two, equality is not a founding principle of the Australian Constitution, as the IPA claim.

Roskam and Breheny repeat arguments from the IPA ‘Race Has No Place’ pamphlet opposing any kind of constitutional recognition. Their argument tangles itself in knots of inconsistency.

Equality is not a ‘cornerstone of the Australian constitution’. The Constitution confers upon parliament a special power to racially discriminate. The Race Power was inserted, according to the constitutional convention debates, to control and exclude the ‘inferior’ and ‘coloured’ peoples. Before 1967, the power was never used. After 1967, it has only been used in relation to Indigenous Australians.

Additionally, section 25 contemplates states banning races from voting, and different races have at various times and in various states been excluded from the franchise. While section 25 was intended to penalise states that excluded ‘races’ from voting, the clause acknowledges that racially discriminatory laws are permitted under the Constitution.

These clauses and the constitutional history informing them demonstrate that equality is not even a logical implication, let alone a cornerstone, of the Constitution. The High Court has confirmed this.²

Strangely, while praising Australia’s constitutional equality, Roskam and Breheny simultaneously argue these ‘divisive’ race clauses should be removed. The contradiction in their position is clear.

The IPA’s equality mantra is an ideological parody of the United States’ constitutional structure, which champions the principle of equality, whereas the Australian Constitution does not. Roskam and Breheny parrot American equality rhetoric. They invoke Martin Luther King Jr’s famous ‘I Have a Dream’ speech, in which he appealed to the US Equal Protection clause – a guarantee Australia lacks.

The resulting constitutional problem for Indigenous Australians is demonstrated by the fact that the Racial Discrimination Act 1975 has been suspended three times in recent decades – each time only in relation to them. As passionate about equality as they profess to be, Roskam and Breheny are puzzlingly unfussed by this history. They espouse King’s equality rhetoric, but inconsistently apply its principles to the situation in their own country.

Consider the irony: the Expert Panel and the Joint Select Committee recommended a racial non-discrimination clause be inserted in the Constitution to guarantee equality, but the IPA oppose the idea. When presented with the opportunity to make real their constitutional ideal through a clause the vast majority of Australians across the political spectrum supported,³ they instead joined those rejecting the proposal – on the grounds that such a clause would empower ‘unelected judges’ to strike down parliament’s discriminatory laws.

They are correct: a racial non-discrimination clause would empower the High Court to hold parliament accountable to the principle of equality. But why would Roskam and Breheny oppose such accountability, given their apparent devotion to equality?

One reason is lack of empathy. White Australians have always been the predominant law-makers in our parliament, and they don’t enact laws that racially discriminate against themselves. This may explain Roskam and Breheny’s preference for whimsical equality rhetoric over practical measures to ensure equality in practice. Their ancestors have never been denied equality on the basis of ‘race’ under Australian law, so their empathy for discrimination against Indigenous Australians is lacking.

Indigenous people, however, have engaged in empathetic communication and compromise across ethnic, political and ideological divides. The Uluru Statement takes on board objections to a racial non-discrimination clause, and calls instead for a First Nations voice in laws and policies made about them as a way of preventing repetition of past discriminatory policies.

The proposal has a long history – Indigenous advocates have argued for decades for fairer representation in their affairs – but its recent iteration arose precisely in response to objections to a racial non-discrimination clause. A First Nations voice in the Constitution would guarantee Indigenous people a say, without transferring power to the High Court or undermining parliamentary supremacy. It presents a way of improving Indigenous policy through early Indigenous engagement, rather than subsequent litigation.

Roskam and Breheny oppose this solution too. They reject it as divisive inequality. Yet they also reject a racial non-discrimination clause that would guarantee equality.

These are hypocritical arguments deployed for political reasons rather than genuine defence of principle.

A First Nations voice in the Constitution would not divide us by ‘race’. There are already race clauses in the Constitution that divide Australians. Ensuring First Nations have a voice in their affairs would create a fairer relationship. It would help prevent discrimination. It would unify, not divide.

Constitutional recognition is not about the outdated, pseudo-scientific concept of ‘race’. It is about recognising the rightful place of the First Nations of Australia – the Wik, the Yolngu, the Yorta Yorta and the Anangu. It is about acknowledging that there are peoples in Australia whose pre-colonial heritage gives rise to distinct rights and interests in their descendants (these are already recognised in common law and legislation, such as the Native Title Act); and those peoples should have a say when parliament makes changes affecting their distinct rights and interests.

Recognition of Indigenous rights is a reality the world over, and it has nothing to do with ‘race’. In some countries, the Indigenous peoples are white. The Sami in Scandinavia have blonde hair and blue eyes. There are Sami councils to advise Scandinavian parliaments on Sami affairs, as well as guarantees of equality before the law and clauses protecting Sami culture and language in their Constitutions. Recognition of Indigenous peoples does not contradict equality before the law: they are complementary principles. Countries that value equality should accordingly value their Indigenous citizens and recognise the distinct rights and interests which survived their dispossession. Indeed, recognition of Indigenous rights is the hallmark of a nation that has deeply considered the equality of its diverse citizens.

If the Aboriginal and Torres Strait Islander peoples of Australia had been white, like the Sami peoples of Europe, they would still be the original peoples of this land, they would still have distinct rights arising from historical dispossession, parliament would still need to make laws and policies addressing such issues, and Indigenous Australians would still be justified in seeking a guaranteed voice in such decisions.

The 1967 referendum gave the Commonwealth the power to legislate for Aboriginal and Torres Strait Islander affairs. That is a necessary power, even if it is framed using the outdated concept of ‘race’. The referendum did not, however, accord Aboriginal and Torres Strait Islander peoples a fair go in the exercise of that power. As the Uluru Statement argues, in 1967 they were counted; in 2017 they seek to be heard when parliament exercises power over their distinct affairs.

The equality objection posits that ordinary democratic processes are sufficient for the First Nations to have a say – even when parliament makes decisions about their unique rights. However, objectors ignore the fact that historically the Constitution has excluded Indigenous Australians from our democracy.

Before 1967 Indigenous Australians were excluded from being counted in the census for the purposes of voting. The Constitution also empowered laws and policies that denied Indigenous voting rights, property rights, equal wages, and asserted unequal protectionist controls.

The historical context exposes the morbid irony of the IPA’s equality objection. Had the principle of equality been extended justly to Indigenous peoples in the first place, Australia would not now be grappling with constitutional reform to ensure Indigenous people receive a fairer go than they’ve had in the past.

The political context exposes the hypocrisy of their objection. Had a racial non-discrimination guarantee been supported by those who so passionately espouse equality, Indigenous people might not now be asking for a constitutional voice in their affairs.

The IPA also wants to remove the Race Power without appropriately replacing it to ensure Native Title legislation remains secure. Odd that a liberal think-tank could be unconcerned about the security of an important category of property rights, and also about the Indigenous right to a fair hearing when political decisions are made about their rights – property or otherwise.

The IPA should be first in line to defend Indigenous peoples having a fair hearing when parliament makes legislative incursions into their rights. In 2014 they argued that a fair hearing is an essential principle of natural justice and a ‘basic legal right’ that must be upheld.⁴ Breheny was mostly concerned about the unfair and unequal impact of laws impinging on company directors.⁵ Indigenous Australians have been subjected to a greater denial of basic rights than company directors.

There can be only one explanation for the IPA’s lack of concern for the security of Indigenous property rights, the history of unequal treatment of Indigenous people, and the importance of Indigenous people having a fair hearing when legislative incursion is made into their rights: the IPA preach equality, but they themselves demonstrate discriminatory double standards.

A constitutional amendment ensuring Indigenous people a voice in their affairs would not divide, it would unify. It is a way to address inequality without empowering the High Court.

The ‘identity politics’ objection

The IPA, Greg Sheridan, Andrew Bolt and Rowan Dean all sing from the same false equality hymnbook. They are like a ghoulish barbershop quartet, harmonising in nastiness and modulating to shriller pitches as their desperation increases.

Sheridan’s response to the Uluru Statement was to rail against identity politics and negative nationalism.⁶ I don’t disagree with Sheridan’s underlying sentiments – only with his illogical conclusions.

Sheridan is correct that nationalism can be good or bad. Negative nationalism leads to aggression, conflict and division. The worst nationalism is racism – the incorrect belief that one group of human beings is superior to another. Positive nationalism encourages unity, cohesion and communal loyalty. The best form of nationalism is patriotism: the shared love of citizens for their country.

Sheridan speaks of the Australian soldier’s willingness to fight for his country as a demonstration of positive nationalism and patriotism. He contrasts this with the rise of internal ‘identity politics’ as a divisive force threatening Australian sovereignty and cohesion. When nationalism manifests in sub-groups within the collective, national unity is undermined, Sheridan argues. That’s why he opposes the Uluru Statement from the Heart.

Sheridan describes himself an ‘old-fashioned liberal on race’.⁷ In a 2014 article he, like the IPA, lauded the US Constitution’s equality guarantee and praised Martin Luther King Jr’s advocacy for equal citizenship. I have already pointed out that Australia’s Constitution has no such equality guarantee. Unlike the US, we have no bill of rights.

The ideological argument Sheridan employs is ill fitted to our constitutional culture. Australia is not an ideological nation and ours is not an ideological Constitution. Ours is a pragmatic Constitution. It does not impose a unitary state. It does not aspirationally declare all Australians equal.

Australia’s Constitution is a product of our history and circumstances. It encourages dialogue, power-sharing, ‘mutual respect and comity’ (to borrow Justice Ian Callinan’s words) between independent parties.

The Constitution was an agreement by the colonies to unite as a single indissoluble Commonwealth, on the proviso they could maintain their political identities and some independence within the system.

The Constitution ensures minority states like Tasmania have an equal voice in the Senate. It manages relationships between independent political identities. In a sense, the Constitution provides rules to mediate identity politics peacefully within a unified nation.

The Constitution’s separate yet complementary parts make up its unified whole. The different voices are checks and balances. This makes our constitutional system accountable, balanced, strong and stable: we are one, and we are many.

We didn’t quash minority voices. We didn’t obliterate the Tasmanian identity, but guaranteed Tasmania an equal voice in the system. That is how our Australian patriotism works: not through broad-brush ideology or forced assimilation, but through fair and pragmatic inclusion. A balance is struck between independence and cohesion.

Indigenous peoples were the constituency left out of our nation’s unity pact. They weren’t at the negotiating table with the Founding Fathers, so they weren’t included in the compact. The Constitution recognised neither their voice nor their rights.

Belatedly correcting this unfair omission by guaranteeing the First Nations a voice in their affairs would be a pragmatic inclusion, in keeping with our constitutional culture and reality. Not an ideological guarantee of equality, as in the United States. Not amorphous symbolism for the High Court to imbue with meaning. A fair say in their own affairs.

This would not create two classes of citizens, as Sheridan fears. It would not lead to the radical identity politics and right-wing reactionary extremism seen in the US under Trump, as Sheridan absurdly suggests.

If Sheridan sees honourable patriotism in Australians fighting at war, then he must also see patriotism in the Aboriginal and Torres Strait Islander soldiers who fought in defence of Australia’s Constitution and the Crown’s sovereignty, long before they were recognised as citizens. They came home to a nation that excluded them and were denied the medals and soldier settlements provided to their white counterparts. Two of Noel Pearson’s great-uncles served in France and came home to discrimination and no recognition for their patriotism.

Australia’s constitutional arrangements empowered such policies. The Constitution still enables parliament to take necessary Indigenous-specific measures. These measures are often not as effective as they could be, and the gap between us widens. Is it really asking too much for Indigenous peoples to have a voice in the constitutional compact, such that their input may improve such measures?

Such a mechanism would encourage dialogue, sharing, and ‘mutual respect and comity’ between the parties. Inclusion of the First Nations would strengthen our national unity. Division arises from exclusion, not inclusion. Through participation, inclusion is fostered.

I agree with Sheridan that the task of a civilised, mature democracy is to sustain decent nationalism. Decent is the key word. Decent nationalism should formally include those previously excluded.

Australia is a nation of three parts: its ancient precolonial heritage, its inherited British institutions and its multicultural achievement. The Uluru Statement affords a unique opportunity to embrace the most Australian part of ourselves, and to do so in a way that upholds our successful constitutional system. This would be a belated recognition of the most ancient part of our nation.

Formal inclusion of the First Nations would be a deeply patriotic move, not a divisive one.

The ‘personal responsibility’ objection

Andrew Bolt’s version of the equality objection has been running out of steam lately. He no longer seems persuaded by his own arguments, and has begun to focus more on responsibility.

Bolt joins Sheridan in suggesting that Indigenous disadvantage is not the result of structural disempowerment but of personal irresponsibility, and therefore that constitutional reform will not help:

Aboriginal children are removed from their homes at 10 times the normal rate precisely because, yes, some parents indeed have no love for them, or at least little care …

What lethal nonsense to suggest it’s only because we don’t have an Aboriginal council in the Constitution that Aboriginal children get bashed, raped or starved. What a dangerous excuse. Aboriginal parents already have the power to feed their children and send them to school. They already have the power not to drink away the grocery money or lift an angry hand.

Yet this is exactly where this victim politics leads – to a lethal dodging of individual responsibility.⁸

The Uluru Statement addresses the structural issue, and suggests that structural reform is needed if real change is to be achieved. Reform leaders like Pearson have long made the point that the lethality of victim politics to which Bolt refers is the very product of the structural disempowerment of Indigenous peoples.

The Uluru Statement suggests that a voice in laws and policies will foster responsibility, empowering First Nations to take charge and improve the policies addressing their disadvantage.

There are two aspects to Indigenous disadvantage and disempowerment.

One aspect, as Bolt correctly identifies, is personal and communal responsibility. All individuals must take responsibility for their circumstances and behaviour. They must send their kids to school, abide by the law and contribute to a safe and productive society. There is no disputing the importance of personal responsibility in addressing disadvantage – Indigenous or otherwise.

The other aspect to Indigenous disadvantage is structural – which Bolt incorrectly denies. No person or community can truly take responsibility unless they have power. If government calls the shots through top-down policy, uninformed by local views and preferences, then people are disempowered. There is a structural and constitutional dimension to persistent Indigenous disadvantage. Until we address this dimension, the gap will not close.

Australia has come to expect abysmal Closing the Gap reports. The current system is not working; it does not produce good results. When I put this point to Bolt on his show, he agreed the system is failing. The systemic and structural failure of policy-making is perpetuating disadvantage.

If Bolt agrees that the system is not working, he should want it reformed.

Bolt is correct that the solution is responsibility. But responsibility requires two things: that people are willing to take charge of their problems, and that governance structures allow and empower them to take charge.

The Uluru Statement speaks to structural disempowerment because it is a document about constitutional reform. The Constitution distributes power. It can empower First Nations to take responsibility, or it can disempower them, as it has in the past. A First Nations voice in the Constitution would enable Indigenous people to take greater responsibility for and leadership of their affairs.

Bolt, however, appears to prefer to keep the system as it is – despite his admission that it is failing. Perhaps he believes his continued lecturing of Indigenous people to ‘take personal responsibility’ might produce better outcomes.

I doubt it will. To ensure change, the system must be reformed to encourage and, indeed, mandate responsibility.

Policies to address family violence, truancy, suicide and alcohol abuse in Indigenous communities would be improved with input from the people they are intended to benefit. The success of the Native Title Act would be greater if governments could better hear Indigenous peoples’ ideas to remove red tape and make their land more economically productive.

Bolt points out that there are already Indigenous MPs in parliament – as though this is a substitute for empowering First Nations with a voice in their affairs.

Those MPs, like any MPs, must represent their constituencies, their electorates and their political parties – in all their ethnic diversity. Those MPs are not representative of the First Nations of Australia; they are representative of all Australians who voted for them – just like a Greek-Australian or an Indian-Australian or a white Australian MP.

The difference is that parliament makes specific laws and policies about Indigenous people. There is no native title act for Indian-Australians like myself, because my ancestors were not dispossessed of land in Australia. Nor has there been an Indian-Australian intervention.

When parliament makes laws and policies about the First Nations of the Northern Territory, as they did with the Northern Territory Intervention, the First Nations of the Northern Territory should have a fair say. Whether you agree or disagree that the Intervention was necessary, there is consensus that it was poorly implemented, without proper consultation, and not as effective as it could have been. The Intervention failed to achieve its aims.

Had local First Nations been empowered to take responsibility in its formulation, the Intervention would not have been discriminatory. It would have been better accepted by communities and more effective.

Those on the political left say the Intervention was discriminatory paternalism; they tend to oppose government intervention promoting responsibility. The right say it was a necessary intervention; they tend to support government intervention promoting responsibility.

The ‘radical centre’ approach is to empower communities to take responsibility themselves: to take the lead when it comes to intervening in and ultimately resolving their own problems. Government cannot solve people’s problems. To paraphrase Eleanor Roosevelt, government cannot do anything for you that you are not willing to do yourself.

The First Nations of Australia have a right to take responsibility. They should be empowered with a constitutional voice in their affairs, so they can always participate in decisions made about them. Andrew Bolt, as a champion of responsibility, should support such a reform.

The ‘all heart and no head’ objection

Rowan Dean, in one of his editorials for the Spectator, argues that the Uluru Statement from the Heart is ‘all heart and no head’: it is based on ‘feelings and feelings alone’.⁹

Dean’s preferred genre is nasty farce: the satire of a sad, angry clown. So focused is he on farce that he misses the strategic choices made at Uluru and instead draws the prejudicial conclusion that the Aborigines are being over-emotional again.

His conclusion overlooks the Uluru Statement’s pragmatic move away from a racial non-discrimination clause to a First Nations voice, a proposal supported by constitutional conservatives; its practical step away from the insertion of symbolic poetry in the Constitution because the Constitution is a rulebook and symbolism alone would have no practical benefit; and the strategic decision to leave the race clauses in the Constitution as they are, because changing the word ‘race’ to ‘Aboriginal and Torres Strait Islander’ makes no substantive constitutional difference.

The Uluru Statement rejects emotional symbolism and opts for practical change. It is smart and strategic.

Dean’s arguments, however, are emotionally driven and intellectually wanting. In response to Stan Grant’s self-evident observation that a First Nations voice, as an institution of the Constitution, would be a ‘political organisation’, he poses this anxious and ill-informed question: ‘Since when are political bodies guaranteed public funding and power under the Constitution? And why on earth would we want them to be?’

Political bodies have been guaranteed public funding and power under the Australian Constitution since 1901. Constitutions confer power upon parliaments, which are, by definition, political organisations. The purpose of constitutions is to organise and manage political processes through the creation of political institutions.

Internationally, many publicly funded institutions empower First Nations with a voice in their own affairs, often accompanied by constitutional provisions recognising and protecting Indigenous rights.

Norway, Sweden and Finland have publicly funded Sami councils which advise their governments on Sami affairs; New Zealand has the publicly funded Maori Council (and reserved Maori seats) to ensure the Maori have a voice in Maori affairs; and Canada has publicly funded the Assembly of First Nations. All these countries not only guarantee First Nations have a voice, but also constitutionally recognise Indigenous rights and interests.

Why do they accommodate their First Nations in institutional and constitutional arrangements? Because the First Nations of a colonised country are not the same as any other lobby group, as Dean incorrectly argues. They are a group of citizens descended from the original owners of the land. They were dispossessed, and have rights and interests arising from this history.

Responsible democracies put in place measures to manage relationships between their Indigenous peoples and the nation state, to ensure Indigenous peoples can participate fairly in the nation. Representative arrangements are part of such measures.

Dean concludes with his own version of the personal responsibility argument: ‘You don’t need constitutional change to achieve a Voice. You just need a loving family, a good education, hard work, guts, ambition, determination and inspirational mentorship.’ Like Bolt, Dean paints only half the picture.

Guts, hard work, ambition and determination didn’t make things fair for the Indigenous Australians who were denied a vote under the laws of our parliament, who were denied equal wages for their hard work, or who were denied an equal reward for the guts they showed in fighting for Australia in both world wars. And while Indigenous affairs policies are more well intentioned now, they are still not producing the results they should.

The historic consensus achieved at Uluru shows Indigenous Australians have guts, ambition, determination and smarts. They have done the hard work to form a unified position. They have asked for a voice in their affairs.

The ‘secret, separatist sovereignty’ objection

Keith Windschuttle imagines conspiracy where there is none. Coming from the hard left and having switched to the hard right when it was opportune to do so, Windschuttle’s paranoid style is understandable. He’s had to earn his stripes since swapping sides and, like all apostates, his ideological argument is more extreme than his more established counterparts.

He contends the ‘Aboriginal political class’ seeks constitutional recognition because it will ultimately lead to their sovereignty. Windschuttle means ‘sovereignty’ in the separatist sense, and he claims this is their secret agenda.¹⁰

There is no secret separatist sovereignty agenda. This is Windschuttle’s attempt to whip up irrational fear.

There is a public separatist agenda, but those advocates are in the minority and they don’t support constitutional recognition. Most Indigenous activists who desire separate state sovereignty tend not to support constitutional recognition because of its inclusive nature. To genuine separatists, constitutional recognition is problematically integrationist.

That’s why seven dissenting sovereignty campaigners walked out of Uluru. The convention was heading in too pragmatic and inclusive a direction for their separatist aims. As one of the dissenters, Lydia Thorpe, explained: ‘We as sovereign First Nations people reject constitutional recognition. We do not recognise occupying power or their sovereignty.’¹¹ Thorpe’s separatist version of First Nations sovereignty is incompatible with the sovereignty of the Crown – hence the rejection of constitutional recognition, which seeks coexistence and reconciliation.

This nuance is lost on Windschuttle, however, who tries to assert that formal Indigenous inclusion in Australia’s Constitution somehow equals Indigenous exclusion and separatism. But the leap from constitutional inclusion to constitutional separatism, and separate Indigenous sovereignty, is unpersuasive.

Windschuttle is also unclear about what ‘sovereignty’ entails. His simplistic notion of sovereignty – sovereignty in the international sense – is generally achieved through force. It is fought out in the political realm, often through conflict.

Equally implausible is the idea that separate Indigenous sovereignty might be established through a legal loophole or unintended consequences arising out of an amendment to the Constitution (an amendment that will need to be approved by a double majority of Australian voters, not to mention the majority of politicians and their legal experts). The suggestion that the sovereignty of the Commonwealth of Australia could be impinged upon or divided by anything less than military force is fanciful. Constitutional conservatives support the proposal for a First Nations voice precisely because it respects parliamentary and Crown sovereignty and upholds the Constitution.

Whereas the seven dissenters preferred a separatist understanding of surviving Indigenous sovereignty, the Uluru majority consensus adopted an inclusive understanding. The Uluru Statement talks about First Nations sovereignty as ‘a spiritual notion’:

the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

This understanding of First Nations sovereignty is cultural and spiritual. It coexists peacefully with the sovereignty of Australian governments and the Crown.

At Uluru the delegates adopted an inclusive approach. They called for a First Nations voice within the Constitution to enable their ancient, surviving, spiritual sovereignty to better ‘shine through’ in Australia’s constitutional arrangements.

This inclusive, spiritual notion of sovereignty is the ‘radical centre’ in the sovereignty debate. The Uluru Statement found the noble compromise to which constitutional recognition aspires.

This noble compromise will not please everyone. It probably won’t please Keith Windschuttle, on the extreme right. Nor is it likely to please Lydia Thorpe, on the extreme left. Both these extremes maintain a fantasy of Indigenous sovereignty as simple separatism, but the fantasy is practically unsustainable and politically unachievable. Windschuttle’s objection doesn’t address the emergent middle ground, and therefore is out of touch.

The moral challenge

Tony Abbott told parliament in 2013:

Australia is a blessed country. Our climate, our land, our people, our institutions rightly make us the envy of the earth; except for one thing – we have never fully made peace with the first Australians. This is the stain on our soul that Prime Minister Keating so movingly evoked at Redfern 21 years ago … we need to atone for the omissions and for the hardness of heart of our forbears to enable us all to embrace the future as a united people.

Paul Keating in his 1992 Redfern speech said the wrongs of the past were able to occur because our forebears failed to ask, ‘How would I feel if this were done to me?’ We failed to put ourselves in Indigenous shoes. We failed to recognise common humanity. We lacked empathy.

The colonisers should have done unto the Indigenous ‘others’ as they would have had them do unto themselves, had the situation been reversed. Of course, we cannot turn back time. All we can do is work towards a better future. The Uluru Statement has given us a practical way to do this.

The quintet of objectors addressed in this essay lack empathy for their Indigenous Australian countrymen. Their stance is unpatriotic. Their false equality objection is the last refuge of scoundrels.

Most Australians have more generous hearts. We want to rise to this moral challenge. We want to learn from history and create a fairer future. As the Australian’s legal affairs editor, Chris Merritt, wrote:

Here’s the harsh reality: Our forebears took this country from the original inhabitants. We are not about to give it back. So the least we can do is oblige ourselves to listen when indigenous people ask to be heard.¹²

The Uluru Statement presents a way for the powerful Australian majority, as represented by our democratic parliament, to ensure that it treats the vulnerable Indigenous minority as we would like to have been treated, had history and circumstances been reversed.

Australians have it before us to guarantee mutual respect, kindness and comity in the relationship between the First Nations and the Australian government.

It’s not asking much to hear Indigenous views when parliament makes decisions about them. It is a modest and moral request. It is not beyond this great nation to make it happen.

 

1John Roskam and Simon Breheny, ‘Indigenous Treaty Would Divide Australia into Two Nations According to Race’, Sydney Morning Herald, 30 May 2017.

2Leeth v The Commonwealth (1992) 174 CLR 455, 485; Kruger v Commonwealth (1997) 190 CLR 1.

3Patricia Karvelas, ‘Most People Want Race Discrimination Removed from the Constitution’, The Australian, 11 November 2011.

4Simon Breheny and Morgan Bregg, The State of Fundamental Legal Rights in Australia, The Institute of Public Affairs, Melbourne, December 2014.

5Simon Breheny, ‘Company Directors Lose Out in Attack on Legal Rights’, The Australian, 5 December 2014.

6Greg Sheridan, ‘Liberals Must Join Barnaby Joyce’s Uluru Rejection’, The Australian, 1 June 2017.

7Greg Sheridan, ‘Constitutional Change Will Divide Not Unite the Nation’, The Australian, 20 September 2014.

8Andrew Bolt, ‘Uluru Statement Will Divide Us As a Nation’, Herald Sun, 31 May 2017.

9Editorial, ‘The Voice’, Spectator Australia, 3 June 2017.

10Keith Windschuttle, The Break-up of Australia, Quadrant Books, Balmain, NSW, 2016.

11Claudianna Blanco, ‘“We Won’t Sell Out Our Mob”: Delegates walk out of Constitutional recognition forum in protest’, NITV News, 25 May 2017.

12Chris Merritt, ‘Koori Court the Exception That Proves Dicey’s Principle’, The Australian, 2 June 2017.