Constitutional Recognition of Aboriginal and Torres Strait Islander People

Sheridan: Constitutional recognition an illiberal idea

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It is no secret that the case in favour of constitutional recognition is relying on the absence of opposition. For that reason, it should be particularly disappointing for them to see the liberal case opposing recognition in the form of Greg Sheridan’s great article in The Australian yesterday:

The Australian Constitution should be colour blind, race blind and heritage blind. Citizenship should be universal and all encompassing as the only basis on which full rights are conferred. These ideas are so obvious it’s surprising they need to be defended…

Recently a number of Western societies have been heading down a destructive and dangerous road, reinstituting identity politics at the heart of civic society…

In Australia these dynamics play out as a push for constitutional recognition for Abor­igines and to create an Aboriginal consultative body within the Constitution. These are terrible ideas that strike against basic liberal principles…

I have been a bit shocked at the silence of liberals in the Liberal Party, unwilling publicly to defend basic constitutional and political principles.

This is partly a result of another debating trick by those who would censor debate. Because no specific proposal has yet been finalised, it is held that anyone who opposes it now is displaying narrow-mindedness because it ultimately might be a proposal they could live with.

This is grievously dishonest, as though mounting a case, in principle, for civic equality that ignores race, ethnicity and heritage, which has always been the liberal position, is intrinsically unreasonable.

If a proposed referendum cannot withstand sustained scrutiny and a serious no case, then it cannot withstand normal democratic procedures and it does not deserve to succeed.

Continue reading here ($).

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Langton: Yes case ‘will almost certainly fail’ to beat funded opposition

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Why are advocates for constitutional recognition so lacking in confidence?

Government funding for a “no” case would doom to failure the once-in-a-lifetime generation chance to recognise indigenous Australians in the Constitution, one of the nation’s most senior Aboriginal leaders has warned.

Marcia Langton, who was on the 22-member Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, said last night she would rather wait a generation than risk failure now in the face of a publicly funded “no” case. “Let me also warn that if a ‘no’case if formalised, funded by the government, and included in the question to be put to a referendum, constitutional recognition of indigenous people will almost certainly fail,” she said.

A ‘yes’ campaign that relies on the debate being conducted on unequal footing shows that its campaign lacks the substance to alter our founding document.

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Leyonhjelm: constitutional recognition is the “politics of the empty gesture”

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NSW LDP Senator David Leyonhjelm eloquently argues ($) in The Australian today that the push for constitutional recognition is disconnected from the reality faced by Aboriginal and Torres Straight Islanders:

Seven years ago, the Rudd government apologised to the Stolen Generations. As the recently released Closing the Gap report indicates, this achieved nothing for Aboriginal living standards.

The unemployment rate for Aborigines and Torres Strait Islanders is still three times the national average, and Aborigines overall have shocking health outcomes and die at younger ages, especially in rural and remote areas.

You’d think the politics of the empty gesture would have fallen out of fashion by now. But no; if anything, things are getting worse. They now include the ridiculous claim that recognising indigenous Australians in the Constitution will somehow improve their health and welfare.

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Laws based on race have no place in Australia

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The campaign for some form of recognition of Indigenous Australians has, in some respects, galvanised around the proposal to adopt a Declaration of Recognition. The question of whether it is suitable in modern liberal democracy to make laws, or symbolic declarations, based on notions of race was addressed today by the IPA’s James Paterson. From The Australian:

A referendum to agree to a declaration of recognition outside the Constitution may be well-meaning but it will do nothing to improve the lives of indigenous Australians. The strongest argument its proponents make is that it will be non-binding and have no legal force. At best, it will recite historical facts no one disagrees with and contain aspirational platitudes everyone supports.

Advocates of indigenous recognition are right — symbolism is important. Entrenching in either the Constitution or in legislation special provisions for people according to their ancestry symbolises not that all Australians are equal but that we’re different.

[Noel] Pearson’s proposal for a new indigenous body that the parliament would be required to consult when passing legislation that affects Aboriginal and Torres Strait Islanders is in some ways even more radical than constitutional recognition. It would foster the idea the national parliament does not represent all Australians.

If it is to be representative, indigenous Australians would choose an extra set of representatives in an election that no other Australian could participate in. It could result in competing mandates that would undermine the legitimacy of laws that are passed by one parliament but rejected by the other.

Notions of race should not be embedded in the law, nor should parliament commit such energy to a symbolically divisive campaign.

Read James’ full article here.

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Can constitutional change really have no effect?

The Herald Sun today published a piece from Lester-Irabinna Rigney, in glowing support for some form of recognition of Aboriginals and Torres Strait Islander people in the Australian Constitution.

Some may ask whether constitutional recognition would take away the rights of any other Australian. Whether it will undermine Australia’s systems of governance, or mean special privileges for some over others. The answer to all those questions is a clear and emphatic “no”.

In contrast, the Executive Director of the IPA, John Roskam, said on November 3 last year:

Exactly how Aboriginal and Torres Strait Islanders will be recognised in the Constitution is not yet known. Nor what such recognition will achieve. Indigenous recognition is a lot like the carbon tax — whenever its advocates were asked what difference it would make to the world’s temperature, they refused to answer. It’s the symbolism that counts.

The trouble with symbolism that is that sometimes symbols matter. That’s the case when it comes to indigenous recognition in the Constitution. The history of the High Court demonstrates repeatedly how words that are seemingly clear can be twisted to suit the political agenda of judges.

Even if a constitutional amendment on indigenous recognition expressly states judges cannot override the parliament’s decision, judges will find a way around that prohibition. That’s what happened to New Zealand’s Bill of Rights Act of 1990.

Even though it specifically stated it was to have no effect on any other piece of legislation and gave the courts no authority to provide remedies for the breach of the law, within a few years judges were ignoring the written words of the act. The president of the country’s highest court declared that the Bill of Rights Act required judges depart from the longstanding practice of applying what the words of a law actually mean because “we in New Zealand try to live up to international standards or targets and keep pace with civilisation”. There’s no knowing what a future High Court will do to a constitutional amendment that recognises indigenous Australians to “keep with civilisation”.

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