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Future nation

Mark has chosen an auspicious time for the launch of his latest book This Country: A reconciled republic? The Canberra launch by Gatjil Djerrkura and this launch straddle 3 June. That date is significant for This Country. It was the date in 1769 which brought Captain Cook to the South Seas to observe the transit of Venus and go on to claim this country—or at least the eastern coast—for the Crown of Great Britain and Ireland. It is a date that has some significance for a republic, for it was on 3 June 1953 that, in this country, we received reports of the coronation of Queen Elizabeth II. Queen Elizabeth and her heirs and successors ‘in the sovereignty of the United Kingdom’ are, by force of the Imperial Commonwealth of Australia Constitution Act, the monarchs of this country. And 3 June is significant for reconciliation, for it was on that date in 1992 that the judgment of the High Court in Mabo v Queensland [No 2] was published.

But the title of the book does more than draw attention to a date. It is an evocative title, challenging us to define our conceptions of the place where we are, the kind of people we aspire to be and the type of government we favour.

‘Country’ is a term which resonates with all Australians. It is, says Mark McKenna ‘a word that goes deeper than nation.’

Do we love this land? Do we care for its survival as the inland rivers dry, the old growth forests are clear felled and salt rises as the water table sinks? Is sustainability the key word in our plans for development of energy supply, transport, housing and urbanisation? Country is a term that evokes warm sentiments in all Australians, but it does not always translate into action. It is a term which evokes a deeper meaning in the minds and hearts of Aboriginal Australians. It is the term which our Indigenous citizens use to describe the land to which they belong—not land as an integer of commerce but land as a source of life. The significance of country to Aboriginal Australians was eloquently described by the late Professor Bill Stanner in his 1968 Boyer Lectures ‘After the Dreaming’:

When we took what we call ‘land’ we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I describe as ‘homelessness’, then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left.

This is the legacy of European settlement. There are now only remote areas in which Aboriginal Australians can perform the ceremonies and discharge the duties they owe to their country, and even in those areas the pervasive culture of the west has eroded the traditions and impaired the transmission of the sacred stories of the Dreaming. We cannot contemplate a future without reconciliation between Australians of Aboriginal and Torres Strait Islander descent and other Australians. As Sir William Deane observed: ‘Where there is no room for national pride or national shame about the past, there can be no national soul’.

At Federation and thereafter we boasted that we had a continent for a nation and a nation for a continent. We were unique. We shared no land boundaries; we had no divisions of the kind which marked Britain and Ireland. We achieved our national and constitutional identity and independence without rebellion or civil war. The people of the federating Colonies ‘humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth under the Crown of Great Britain and Ireland’. We were the lucky country that enjoyed the blessing of Almighty God.

The rhetoric of the time saw Australians as a mono-cultural, mono-ethnic community, but the Aboriginal peoples of Australia were constitutionally ignored. We did not achieve our national and constitutional identity in unity with our Indigenous people. When we moved to a national Federation, sections 25, 51(xxvi) and 127 [‘ In reckoning the numbers of the people … aboriginal natives shall not be counted’] of the Constitution removed Aboriginal Australians from the Constitutional radar screen. And so it remained until 1967 when the enfranchised people of Australia voted to remove the reference to Aboriginal people in section 51(xxvi) and to delete section 127.

What explains this lengthy delay in recognition? Aboriginal society and culture were, and traditional Aboriginal society and culture are, so different from the society and the culture of the West that it is not surprising that it was not understood by European settlers and, indeed, is not well understood by most of us in the Western tradition today.

It was not understood that Aboriginal people could share their country but would never reduce it into exclusive private possession. In earlier times, if Aboriginal people tried to share country which had been granted to Europeans, the Europeans would treat the Aborigines as trespassers and the Aborigines would treat the Europeans as usurpers. Conflict was inevitable. Nor was it understood that Aborigines would allow others the right to forage over their country, so it is not surprising that they would forage for cattle or sheep that were regarded as the property of Europeans. Nomadic Aborigines were unlikely to understand the need for settlement of an agrarian society. Nor could an understanding of the social structure of the two societies be easily appreciated. A nomadic Aborigine had no concept of saving possessions; of necessity, each day was sufficient for itself and so the Aborigine appeared to be wasteful and incapable of joining our Western society in a successful industrial and post-industrial age. Aboriginal people have never been restricted to a nuclear family; their obligation is to share what they have with members of a widely extended family. But Aboriginal society had the strength of a deep spirituality and it has largely retained that characteristic while Western society has drifted more into materialism and consumerism, forgetful of the spiritual and the transcendent. Western society could never understand the Aborigine who went walkabout to perform his spiritual duties and to join members of the extended family gathered for a ceremonial occasion.

Each culture had an intrinsic logic but the logic of each was the converse of the other. And so the policies of the Western society were formed, the laws enacted and the practices followed which were designed to bring about the mono-cultural community envisaged at Federation; policies to smooth the dying pillow of the expected-to-disappear Aboriginal race; policies to assimilate Indigenous Australians into the European way of living and thinking; and policies to take children from their families so that they acquired Western values. Policies which were tragic failures because they failed to acknowledge not only the culture of the Indigenous Australians but their very humanity.

In time the policy of compulsory abduction of children was abandoned and an appreciation of the intrinsic strength of the Aboriginal culture and tradition led to the realisation that Aboriginal Australians would never be forcibly assimilated into the Western culture or mainstream. Gradually, when Mr Whitlam poured the soil into the hands of Vincent Lingiari and Sir Edward Woodward’s report was implemented by Mr Viner and Mr Fraser and the High Court delivered its judgments in Mabo and Wik we came to recognise that unoccupied Crown land was not Crown land but Aboriginal land—held by a fragile title, it is true, but nonetheless Aboriginal land. Then there was the massive outpouring of compassion when people marched in their thousands to say ‘sorry’. We have seen some great steps taken towards reconciliation but a long distance is yet to be traversed.

Mark McKenna challenges us to take the journey as we move to a republican form of government. He shows how the movement towards reconciliation has been quieted—by political diversion, by ‘the fear of cultural difference’ and, he contends, by the timidity of a republican movement which treated reconciliation as a separate issue when it should have embraced constitutional recognition of Aboriginal people and their right to freedom from racial discrimination.

He proposes a new incentive and a new solution. Marry reconciliation with the republic, each movement giving vitality to the other. Let reconciliation be an objective of the new republic and let the republic be sought as a means of achieving reconciliation. This is a heady challenge and it deserves careful consideration. But I wonder about the wisdom of the marriage of these two movements in the context of constitutional amendment.

Two questions come to mind: one is practical, the other political.

First, the practical question. How can constitutional amendment advance reconciliation? One section to which objection is rightly taken is section 25 ... if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted]. It is offensive and obsolete. It should go but it changes nothing. Another provision is section 51(xxvi) which gives the Parliament power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. Should it be removed? The Constitution does not contain a Bill of Rights; for the most part, it simply distributes power between the Commonwealth and the States and among the Parliament, the Executive and the Judiciary. If the Constitution were to deny the power to make laws for the people of a race and were to forbid racial discrimination, a law could not be made to benefit only one race. A Constitution endures indefinitely, so if we made an exception of beneficial laws for Aborigines or Torres Strait Islanders, what would we do if, in the years to come, we need to make special provision for Pacific Islanders whose homes are inundated by rising seas?

Of course, reconciliation would be advanced by the protection of Indigenous rights but reference to the complexities of the statutes which currently protect Aboriginal land rights shows that, in a pluralist society, no individual right can be protected without qualification. Moreover, no broad statement of principle will suffice to achieve reconciliation. A variety of measures must be taken—some which prohibit conduct which is inimical to reconciliation, some which positively advance that objective. Take a current issue: what can be done to diminish the symptoms of despair—substance abuse and violence—that blight all our communities and especially some Aboriginal communities? However we answer this question, we may not adopt a policy that diminishes the power of government to assist those in despair.

But Mark McKenna does not seek to achieve reconciliation simply by substantive amendment of the Constitution. He would have Indigenous rights and Indigenous history recognised as an element in an eloquent preamble to a republican Constitution. He proposes a preamble which expresses three fundamental principles:

Constitutional recognition of Aboriginal people and freedom from racial discrimination; the values and principles of Australian democracy; and a commitment to care for the land and the Australian environment.
This is a feasible proposal. It would acknowledge our history and identity, our basic political values and our respect for this country. As for reconciliation, a careful wording of the first principle would permit governments to work for reconciliation by taking steps according to the needs of particular communities. The preamble could affirm a commitment to this country as the ‘core of my heart’.

Is all this an empty symbolism? I think not. True symbols are the expression of our deepest values and the guideposts to our actions. For too long in this country have we been fearful of acknowledging the grandeur of our environment, the cultural richness of our population, the vitality of our next generation, the splendour of our tradition of equality and tolerance. A new constitutional departure could celebrate all these characteristics and dismiss the narrow, fearful attitude that seems to rob us of our unity, our independence and our national pride. It could be a liberating stimulus to produce a free and confident nation. But the preamble would have to acknowledge not only the injustices of the past and our respect for Aboriginal tradition and culture; it would have to acknowledge our unity in the diversity of the many peoples who have enriched the Australia of today. The history and culture of modern Australia has roots not only in this country or in Great Britain and Ireland; it has roots in Europe and Asia and the islands of the Pacific. If we move to a republic, it must be a republic for all Australians, a republic that celebrates our unity in diversity and the mutual respect of all sections of our multi-cultural, multi-ethnic, multi-religious community.

Now the second question: the politics. Many Australians have been made fearful of the future, troubled by change, clinging to what they see as the certainties of the past. They may be in the minority on one issue or another, but if two or more issues are joined, the combined minorities may be marshalled to make a majority. We witnessed an alliance between monarchists and direct electionists in the most recent vote on the republic with a President elected by Parliament. So if we wish to see changes in our Constitution—both a preamble and a republic—let the issues be separated into separate pieces of legislation and permit each issue to be addressed by the electorate as it sees fit. That was the procedure favoured by the Constitutional Commission in 1988 when it drafted as many Bills as were needed to deal with the series of recommendations made for constitutional amendment. Else a coalition of the unwilling will defeat what would be a majority view on a discrete proposal.

For these reasons, I have reservations about Mark’s thesis but not about his objective. A preamble which acknowledges the first peoples of our nation and their unique and resilient culture and their occupation and custodianship of the land, which celebrates our unity in the diversity of all who make Australia home, which reaffirms our commitment to the rule of law and the system of representative and responsible government and which is expressed to further the protection of our homeland would be a powerful statement of the character of our people and society. To achieve reconciliation among Indigenous and non-Indigenous Australians and to adopt a Constitution for an Australian Republic would be to see our nation achieve its full maturity and dignity. For those of us in the autumn of our lives (or later), our hope is that our children and our children’s children will see such an Australia—an Australia reconciled, a republican Australia, a free and a confident nation.

This is an edited text of Sir Gerard Brennan’s address at the launch of This Country on 8 June 2004. Sir Gerard Brennan served on the High Court of Australia from 1981 to 1998.

This country: A reconciled republic?, Mark McKenna. UNSW Press, 2004.
isbn 0 868 40551 5, rrp $29.95



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