The conservative side of politics has always been more successful than Labor in proposing constitutional change in Australia. That's not because Liberals or Nationals are more committed than Labor to constitutional change.
The Australian Constitution is a very democratic instrument. Our politicians cannot amend it without the approval of the people. The people are very unlikely to approve an amendment proposed by politicians unless both sides of the parliamentary chamber support the change. Even then, the people may suspect that the politicians are in cahoots acting against the interests of the people.
In the field of Aboriginal affairs, a referendum proposed by an Abbott government would be more likely to win support from the parliamentary Opposition than one proposed by a current Labor government. This has nothing to do with the personalities of the two leaders; it has everything to do with the Coalition being the more difficult side of politics to bring on board with constitutional change when it is in Opposition.
Given the present opinion polling and the divisions in the Labor Government, it is no surprise that Tony Abbott is confidently preparing his team for government. Anything he says about constitutional change therefore carries considerable weight.
Last week he spoke at the Sydney Institute and repeated some of the themes from his very welcome parliamentary speech backing the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. Each time he has broken from the John Howard mould and demonstrated a bipartisan spirit by referring to Paul Keating's 1992 Redfern speech. He told the Sydney Institute:
There may come a time, perhaps some decades hence, when we can be relaxed and comfortable about the circumstances of Indigenous Australians — but it's not now. Our failure to come to grips with this remains, in Paul Keating's resonant phrase, a stain on our nation's soul.
Having demonstrated his willingness to move beyond the anti-black-armband view of history, each time he has been quick to indicate that he is not opening the Pandora's box of wide ranging constitutional reform. The cautious sting was in the tail of his parliamentary speech: 'I believe we are equal to this task of completing our Constitution rather than changing it.' Last week he underlined that caution when he told the Sydney Institute:
An acknowledgement of Aboriginal people as the first Australians would complete our Constitution rather than change it. Aboriginal people need to know that they will never be regarded as just a historical footnote to modern Australia. Done well, such an amendment could be a unifying and liberating moment, even surpassing the 1967 change or the Apology, so it's worth making the effort.
Within 12 months of taking office, an incoming Coalition government would put forward a draft amendment and establish a bipartisan process to assess its chances of success. The difficulty of crafting an amendment that satisfies Aboriginal people while reassuring the wider community that we are not creating two classes of citizen should not be underestimated.
Australians of all political persuasions will have differing views about what constitutes completion, and whether it requires any change. We also need to get used to the idea that there will be a divergence of Aboriginal opinion about the desirable content of the Constitution, and about how best to proceed to seek constitutional change.
Last week's election of Adam Giles, the first Aboriginal Chief Minister of the Northern Territory, presented the nation with an Indigenous leader who unashamedly speaks more as a Liberal in the John Howard mould about Indigenous affairs: 'Our future in the Northern Territory is about jobs, jobs, jobs, not welfare, welfare, welfare.' He jokes that his Aboriginal father would be 'turning in his grave' to know his son was now a conservative.
When working for the Howard Government reviewing Indigenous policies, he realised that 'welfare and socialism are what's killing Aboriginal people'.
Within Indigenous communities as well as among Australians generally, there will be a range of views as to what constitutes completion without substantive change of the Constitution. And there will be those who think completion without real change won't be worth the paper it's written on.
In his parliamentary speech, Abbott pointed across the Tasman at the Treaty of Waitangi whereby 'two peoples became one nation'. Things are not looking that simple and complete in New Zealand. The government there had to cut a deal with the Maori Party in 2008, setting up a Constitutional Review Panel which is still looking at a range of issues including 'the role of the Treaty ... within New Zealand's constitutional arrangements'.
The panel has had to counter allegations that it has a secret agenda 'about making the treaty an overriding piece of law which cancels all other law out'. It will be interesting to watch the New Zealand panel as it consults and reports by the end of the year.
I well recall Sir David Lange, the expansive ex-prime minister of New Zealand, once laughing at us Australians during an after dinner speech because we are always seeking the final settlement of Indigenous grievances. He said the best you could ever do was seek durable agreements which lasted a generation or two. That sounds more like change than completion.
There will be a lot of hard work to be done to complete or change the Australian Constitution, regardless of who is prime minister after 14 September.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. This is an extract from his address to the 18th National Schools Convention held at Parliament House, 21 March 2013. Full text here
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21 March 2013
As I was reading this, I thought of the closing lines of Rhyll McMaster's poem "On Middle Ground" - "On middle ground/where speech is found hollow and justifying fails/uncodified, a graph line starts its waver/till spikily defiant, impervious to threats,/it describes the mean parabola/of malevolent intent." (Just a Greens voter imagining an Abbott government)
25 March 2013
Pam, in the interests of NOT feeling afraid, have you read his book? You should. Rather than descending into tribalism and merely assuming you know what he will do.
25 March 2013
@Ian, I'm not sure which book you are referring to. I will admit that Tony Abbott has not done much so far to endear himself to me - I am of a different political persuasion. I do hope that he is sincere in his remarks about constitutional recognition of Indigenous Australians and that he listens carefully to their concerns. There are a whole range of other issues on which I disagree with Abbott's stated views - that is unlikely to change.
25 March 2013
I agree with you, Fr Brennan. Given Abbott's years of genuine contact with Indigenous communities, I do believe he will work to ensure the inclusion of our First Peoples in the Constitution. If only he would have the same empathy with asylum seekers...
25 March 2013
Heartening news amidst what might otherwise seem a disheartening prospect in terms of election outcomes. Attending last week's forum at Newcastle University with Jeff McMullen as keynote speaker has deepened my awareness of how vital it is to open up discussion on the issue and make sure any changes reflect the reality as told by our Indigenous brothers and sisters. It is too important to be purely symbolic even though symbol often has a power to drive change. Thanks for your thoughts, Frank :)
25 March 2013
Fairness and appropriate recognition of Aboriginal people is favoured by the majority of people on both sides of politics and his statements will lose Tony Abbott no votes. But his emphasis on this subject should accompanied by equally forthright statements and information on the more controversial policies that will affect the majority of workers, families, the ill and the elderly. Lack of information on bread-and-butter issues, plus the traditional Liberal bias towards the rich and powerful, will be a great danger if Tony Abbott is elected with a 'blank cheque'. Repeating the time-honoured shout from the back of the hall when we had public election meetings and non-committal candidates - 'GIVE US YOUR POLICY !!'
25 March 2013
When will the majority of Eureka Street's supporters stop hating Tony Abbot and listen to the great majority of Australians that cannot wait for the election to get rid of Julia Gillard's shambolic government?
26 March 2013
I'll be more impressed with Abbott when he says he will also seek to revoke that section (section 51(xxvi)) in the constitution which enables to parliament to make laws for people of any particular race.
26 March 2013
Ron Cini asks 'When will the majority of Eureka Street's supporters stop hating Tony Abbot (sic)?' The answer, Ron, might be when Catholic Abbott and his proudly Christian immigration spokesman begin to exhibit some of the Christian virtues that they espouse. As it is, Morrison has confirmed (see link below) that 'under the Coalition's plan, asylum seekers would be subject to strict protocols and police and residents would be notified when they moved into their communities'. Abbott has not denied this. The logical next step is for refugees to be required to wear some identifying badge and report daily to police. Similar things have been done before, and not only by the Nazis. That good old Christian Innocent III also thought it appropriate to order Jews to wear yellow badges.