The Failure of ‘Recognition’ by Paul Muldoon

A successful referendum on the recognition of Aboriginal and Torres Strait Islander people may once have looked like a fairly good prospect. The failure of the founders to make any mention of Aboriginal people in the Constitution seemed self-evidently in need of correction, the proposal enjoyed bipartisan support in a parliament that could agree on little else, and, in the person of Tony Abbott, it found a prime minister who said he was willing to ‘sweat blood’ for it. Such, it seems, was the confidence (or was it in fact the desperation?) of the political establishment that it blithely commenced its ‘yes’ campaign, ‘Recognise’, before the substance of the proposal had even been decided. And yet the chances that we will even have settled on a question before 27 May 2017 rolls around—this being the date originally favoured by Abbott—now seem increasingly slim. For all the goodwill built up (and all the public-relations exercises undertaken) during the six years since Prime Minister Julia Gillard first returned it to the political agenda, recognition would appear to be on the brink of failing. What happened?

Lots of things, to be sure, but three expressions of dissensus stand out as especially noteworthy. In the first place, conservatives took umbrage at the proposals for reform put up by the expert panel appointed by Gillard in 2010. Tasked with reporting to government on possible options for constitutional change, the panel set its sights on the historically anachronistic and morally unconscionable references to race surviving in the Constitution. More specifically, it recommended that section 25, which allows the states to ban people from voting on the basis of their race, be deleted and that section 51(26), which gives the federal government the right to pass laws that can discriminate on the basis of race (and this irrespective of whether it is to the benefit or detriment of that race), be removed. In addition, it recommended that three new sections be inserted or adopted: one giving the Commonwealth government the power to pass laws for the benefit (and only for the benefit) of Aboriginal people (51A), one explicitly prohibiting governments from passing laws that discriminate on the basis of race (116A) and a third recognising Aboriginal and Torres Strait Islander languages as the ‘first tongues’ of the country while simultaneously acknowledging English as the national language (127A).

Although this suite of proposals could hardly be described as radical and was, in fact, largely in line with the position taken by the Law Council of Australia in a 2011 discussion paper, it met unwavering resistance from ‘the Right’. For those now commonly packaged up together as ‘constitutional conservatives’ but who actually divide on various matters among themselves, the recommendations of the expert panel carried two glaring problems. The first was the apparent inconsistency created by the attempt to outlaw discrimination on the basis of ‘race’ while allowing it in relation to ‘peoples’. Although the capacity to discriminate in favour of Aboriginal people is in fact required for the operation of legislation such as the Native Title Act (1993) and can conceivably be justified on the basis of indigeneity rather than race, conservatives such as Andrew Bolt objected to it on the basis that it infringed the liberal principle of equality. Adamant that all should be equal under the Constitution or, in other words, that there should be no recognition, Bolt insisted that anyone who was born here, lived here and could ‘call no other country home’ was by definition Indigenous and enjoyed as much right to the land as anyone else. Others, more amenable to the panel’s recommendation that the so-called ‘race power’, section 51(26), be converted into an ‘Aboriginal peoples power’, nevertheless took exception to the proposal for a racial non-discrimination clause. With greater and lesser degrees of cogency, they argued that the proposed new section 116A amounted to a one-clause Bill of Rights that would expose existing legislation to legal challenge and increase the powers of the judiciary at the expense of the legislative and the executive. Indeed, rather than serve the ‘recognition project’, they insisted, such a proposal would effectively condemn the referendum to failure—presumably because they would bend over backwards to ensure its defeat.

In the face of this resistance, Noel Pearson, himself a member of the expert panel and then a staunch advocate of the racial non-discrimination clause, opened a dialogue with conservatives in the hope that they might find some common ground. At first, it did not look promising. Where his interlocutors worried that a racial non-discrimination clause would lead to judicial activism, Pearson worried that its absence would leave the door open to the kinds of racial abuse Aboriginal people had suffered in the past. Remember the Stolen Generations? However, in what has now de facto become another ‘recognition package’, they eventually reached a consensus position around their own set of proposals. In line with the expert panel, Pearson and friends have supported the removal of section 25 and the replacement of the ‘race power’ provision, section 51(26), with a power that can only be used with respect to Indigenous peoples. In addition (and herein lies the real innovation), they agreed that provision should be made in the Constitution for the creation of an Indigenous body that could advise the federal parliament on all matters related to Aboriginal affairs. Though by no means without merit, particularly if the referendum is to pass, Pearson’s proposal clearly has its weaknesses. Not only does it not provide the iron-clad guarantee against abuse that a racial non-discrimination clause would (the proposed Indigenous body would have advisory but not veto powers), it remains of questionable legitimacy. Though Pearson might have succeeded in winning over the constitutional conservatives, his proposal for an Indigenous advisory body is the product of private deliberations rather than public consultations. Whether it will be regarded as an authoritative proposal is thus not yet very clear.

This brings me to the second expression of dissensus. If matters were not already complicated enough, they became even messier in 2015 when a collection of Aboriginal leaders (not, I hasten to add, the Aboriginal leadership as such) raised concerns about the whole process by which the referendum proposal was being developed. In an article published in The Weekend Australian, Noel Pearson and Pat Dodson, with the support, albeit unacknowledged, of Megan Davis and Kirstie Parker, argued that Aboriginal and Torres Strait Islander people had not yet been properly consulted. Regardless of its merits, therefore, the proposal for Constitutional recognition (already being publicly championed through ‘Recognise’) was running ahead of the community to whom it was addressed. There was the perverse possibility of a referendum on Aboriginal recognition that was not supported by the very people it claimed to be recognising. The apparent necessity of such consultations notwithstanding, Pearson and Dodson’s call for an ‘Indigenous process’ that would run prior to (and inform) the mainstream debate was resisted by Abbott on the grounds that there ought to be a single ‘national conversation’ about recognition. The result of this impasse was the formation of a ‘Referendum Council’, currently co-chaired by Pat Dodson and Mark Leibler, which has responsibility for guiding the ‘national discussion’. In recognition of the ‘vital role’ of ‘First Australians’ in this ‘national conversation’, the council has been empowered to hold a ‘concurrent series of Indigenous-designed and led consultations’. There has, however, been no suggestion that those Indigenous-designed and led consultations ought to take precedence over (or even give guidance to) the national conversation. Indeed, while Abbott readily conceded that Indigenous people should have the chance ‘to talk this through as thoroughly as possible’, he remained insistent that it ought to be a ‘we the people’ process.

The third, and potentially the most significant, expression of dissensus took place in February 2016 when the Victorian Labor government of Daniel Andrews held a historic meeting with representatives of the local Aboriginal community (the first such meeting in two decades). Called by Aboriginal Affairs Minister Natalie Hutchins in order to ascertain what the Victorian approach to constitutional recognition looked like, the meeting quickly took an unexpected turn. Before the minister had even arrived, the 500-strong representation passed a motion on the issue that unanimously declared: ‘We as Sovereign People reject Constitutional Recognition’. A second motion was later passed, this time with one dissenter, stating: ‘We demand the state resources a treaty process, including a framework for treaties, with complete collaboration with all Sovereign Peoples and Nations, and treaties are finalised and agreed upon by December 2016’. This was not, of course, the first time that the idea of a treaty had been raised in the course of the debate over constitutional recognition. Yet it was the first time it had been presented as a rival consensus.

What ought we to make of all this? Clearly, these disagreements over substance and process have the potential to endanger the referendum. Yet that, in itself, may be no reason to lament them. Change is always difficult in a democracy and radical change (which is to say change that goes to the ‘constitutional roots’ of the polity) even more so. And isn’t that exactly as it should be? Isn’t it right that there should be contestation over questions of both substance and process when one is trying to forge agreement on serious matters among stakeholders with competing ideologies and interests? Even ‘cautious democrats’ like John Stuart Mill (if that title does not flatter him too much) recognised that democracy works best when opinions can be freely expressed and freely engaged. Rather than irritants to the smooth progress of reform, disputation, resistance and the delays that they cause testify to a robust public sphere. What kind of democracy would it be if matters of public concern were not exposed to the contest of opinion and argument? Noel Pearson is thus quite right to criticise the emptiness of stage-managed processes that stifle discussion about the merits of recognition and the form it should take in the name of securing a faux consensus. As he correctly points out, ‘[w]e either win on the strength of our ideas and arguments, with integrity, truth and rigorous debate, or we don’t win at all’. Racial non-discrimination or not, Indigenous advisory body or not, separate black process or not, treaty or not, it would, then, seem to be all to the good. Surely these are matters that the public ought to discuss?

In principle the answer to that question is yes. Much has been gained (and could still be gained) simply from having a robust discussion about different forms of recognition and coming to understand the causes of dissensus. The exchange of arguments can itself be educative—or such, at least, is the radical hope of every deliberative democrat. The complicating factor in this case is that we are dealing with a matter that is at once of concern to the public and in concern of the public. By its very nature, in other words, the recognition of Aboriginal people is not simply something that concerns the happiness and well-being of the citizen body (the commonweal) but something that throws doubt on the existence of that citizen body as a body (a commonwealth). Regardless of the name one uses—‘First Nations’, ‘original inhabitants’, ‘Indigenous peoples’—the same question persistently arises: does it make sense to keep talking about ourselves as a people in the way ‘we’ have been accustomed to do up until now? Would not granting recognition (in whatever form) finally confirm that there are (at least) two peoples here and consequently that ‘we’ are not a ‘we’ after all? As Abbott was perhaps dimly aware when he balked at the idea of an ‘Indigenous process’, the democratic contest of opinion is premised on the idea that the public sphere is shared in common and visible to all. What was being implied about commonwealth by the suggestion that Aboriginal people needed to discuss this matter on their own? Could it be that it was not merely public opinion that was divided, but the public body itself?

Abbott, it seems, was genuinely taken aback by calls for an independent Indigenous process. But he probably shouldn’t have been. Truth be told (not something we are especially good at in this country), the idea of a commonwealth has always been a bit of a lie when it comes to Aboriginal and Torres Strait Islander people. Excluded from the constitutional negotiations and settlement of 1901, their difference from other citizens was, from the very outset, marked by their civic invisibility. Indeed, if honesty was the measure being applied, one could do a lot worse for a preamble to the genesis text of Australia than: ‘in the beginning there was a failure of recognition’. Left out in the cold, politically speaking, Aboriginal people effectively had to fight their way into the Commonwealth, battling strong opposition all the way. That (and really only that) is what makes the 1967 referendum so important. Though the constitutional reforms then agreed were actually rather modest—the federal government simply acquiring the power to make laws for Aboriginal people—the overwhelming success of the referendum became a symbol of victory. After a long conflict, and with many defeats, Aboriginal people had, it seems, finally won their place in the Commonwealth.

Even after they were formally included, however, the situation of the ‘first Australians’ remained anomalous, their rights and interests (particularly in land) always potentially at odds with the happiness and well-being of the rest of the Commonwealth. From that day till this, the infelicity of their inclusion has been underlined time and again by the willingness of governments to sacrifice those rights and interests for the sake of the commonweal. As the qualifications and restrictions placed upon native-title rights in the wake of their ‘discovery’ by the High Court clearly demonstrated, that which is in the interests of Aboriginal people and that which is (or is taken to be) in the interests of the general public are by no means the same thing. Being a ‘first Australian’ in such cases has tended to mean being the first to lose out. Should the rights of Aboriginal people stand in the way of national development, the way can always be legislatively cleared. While the invisibility of 1901 has now been corrected, therefore, the untruth of commonwealth continues to express itself in the perception that ‘their’ rights are a threat to ‘ours’ and must be curtailed accordingly.

If proposals for the recognition of Aboriginal and Torres Strait Islander people call up the spectre of division, then, it is not simply because they acknowledge a distinction between ‘us’ and ‘them’. It is also because they have the potential to expose the conflict between ‘us’ and ‘them’ over land and sovereignty that commonwealth denies or erases. Clearly, one ought not discount the possibility that recognition will lead to ‘a more complete commonwealth’, as Noel Pearson has claimed. But it might just as well lead to the realisation that there has never been a commonwealth here at all. At present it looks like an each-way bet. Is it any surprise, then, that it is the conservatives who have been the most attuned to the political stakes of recognition, and the most worried about its political implications? As conservatives appear to have understood all along, recognition is not about who Aboriginal people are (that is, about how ‘we’ should name ‘them’) but about who they are in relation to us. And that is a rather more complicated, and potentially far more explosive, question.

What seems to trouble the constitutional conservatives more than anything else in this regard is the deeply ambiguous status Aboriginal people have as a result of their prior occupation. As the acknowledgement of the traditional owners now ritually performed at official functions makes manifest, Aboriginal people are simultaneously one, and not one, of ‘us’. As citizens who are always more than citizens, they unsettle the idea of commonwealth and inspire fears of its dismemberment. Their prior occupation—so easy to acknowledge ritually and symbolically and so hard to countenance legally and politically—opens up the possibility of a rival claim to land and sovereignty that Australia has not yet come to terms with, a few nods in the direction of land and native-title rights notwithstanding. Taken seriously (and how else can it be taken?) the recognition of the first inhabitants as a distinct people would confirm what Australians have for so long tried to deny: that Aboriginal people are not just citizens, nor even citizens-plus (that is, citizens with special rights), but members of a distinct polity with whom we have not yet reached a lawful arrangement.

Ultimately all the expressions of dissensus in the recognition debate come back to this question of unity and division. The discussion about the merits of discrimination, the proposal for an Indigenous advisory body, the request for a separate, Indigenous-only consultation process, and the demand for a treaty are in the end about nothing other than identity and difference. And should we be surprised? What else could recognition be about other than the recognition of difference? The idea that Aboriginal people are culturally distinct has, of course, long been accepted. Though their ancient culture has at times been viciously maligned or, what is sometimes worse, cynically appropriated, its existence has never been doubted. The idea that Aboriginal people might be legally and politically distinct has, however, always been strongly resisted. Mabo opened our eyes to the fact that there is another system of law operative in the country and a small step was taken towards granting it the recognition it was due. Yet we still seem a long way—sometimes a long, long way—from working out how the relationship between their law and ours ought to be configured.

One thing that surely cannot be denied any longer is that it is a relationship. The idea that we are all Indigenous is certainly one way of capturing the sense of belonging to, and affection for, this country that many of us feel (whether we were born here or not). But as an argument in favour of equal rights, and against the recognition of Aboriginal difference, it simply doesn’t wash. Aboriginal people are differentiated, not simply by the fact that they were here first, and not simply by the fact that they have a common experience of discrimination, but by the fact that they respect their own law and belong to their own polities. Sceptics may, of course, still demur. But the ground upon which they stand has been shaky ever since the High Court decided that the substance of the common-law right of native title was to be found in a system of law that predated British settlement. Engaging honestly and faithfully with this system of law would seem to require something more than symbolic statements of recognition or the removal of references to race in the Constitution (which is not to say those things aren’t necessary as well). The foundations of the polity need to be revisited and a constitutional arrangement struck that does not simply unite the states in a federation but create a just and lawful relationship between Aboriginal and non-Aboriginal people. In the end there may be no other way to do this except by following other Commonwealth countries in concluding a treaty with the First Nations. I’d like to think that Australia is now mature enough to embrace rather than spurn such an idea. Either way, however, I suspect it will not be able to hide from it forever. Anything else would be a failure of recognition.

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Paul Muldoon

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