Life on the West Island - Constitutional myths

The West Island is in the grip of a phoney war, about a referendum which is yet to be called. Passions are running high in the “Yes” and “No” camps about an apparently minor change to the national Constitution to be proposed when the referendum is actually held later this year. The change would recognise the nation’s first peoples in the Constitution and give them an advisory “voice” to parliament. This seemingly innocent change has evoked an outpouring of racial hatred and a slew of remarkable claims about how it would bring about an end to life as we know it and cause irreparable division in the community.

These hysterical reactions seem rooted in the same mentality that was trumpeted when native title was recognised by the High Court, that no Hills Hoist would be safe because all of our back yards would be claimed and turned into tribal homelands. As well, the courts would be clogged for years with constitutional litigation and taxpayers would be forced to pay untold billions in compensation to Indigenous peoples. None of those things occurred, yet the same discredited arguments are being trotted out again to try to defeat a reasonable proposal that First Nations people might get some say in the legislation and programmes to which they might be subjected. They also ignores the fact that the nations to which we like to compare ourselves – such as New Zealand, Canada and the United States – reached such settlements with their first inhabitants many decades ago.

One of the most common arguments put forward by the “No” campaign is that our God-given Constitution has served us well, so we should not tamper with it – and even a claim that the Voice would be the biggest constitutional change ever. Both arguments are specious and knowingly false, assuming that West Islanders revere their Constitution and are fully aware of its contents. Yet studies show that less than 5% of citizens have actually read the Constitution, and even less know what it contains.

Distinguished scholar and former federal minister Barry Jones points out that there is a unique element at the core of the Commonwealth of Australia Constitution 1901: it is the only one in the world where the document was adopted sight unseen by a direct vote of “all” citizens – which meant all non-Indigenous males, except in South Australia and Western Australia.

When Federation was adopted by the Australian colonies in the years 1898, 1899 and 1900, by the unfamiliar practice of a referendum, it could have been described as “risky”, “unknown”, “divisive” and “permanent”. Nobody had any experience of a referendum or a federation. The document the colonists voted for makes no reference to democracy, democratic practice or the system of responsible government.

Dr Jones goes on to explain what is actually included in the Constitution, and perhaps more importantly, what is not:

The biggest possible change in the nation would be to actually apply the Constitution of the Commonwealth of Australia as it is written. That would really frighten the horses.

In the Australian Constitution sovereignty is still centred in Britain. As written, the constitution would see the office of prime minister disappear. There would be no cabinet or opposition. There is no reference to democracy or democratic practice, or what happens after an election. Executive power is exercised by the governor-general, who would also act as commander-in-chief, perhaps in the field. He would make all appointments, frame the budget and veto legislation, or refer it to Buckingham Palace, at whim.

The constitution is a profoundly racist document, an expression of White Australia, of settler history, with the concepts of Australia having been “discovered” by Europeans under the fiction of terra nullius. Implicit in it is “the passing of the Aborigines”. The 1901 Commonwealth Constitution has never operated as written. It was an anachronism from the outset, as many public figures pointed out at the time.

Of course, our actual system of democratic government has developed despite the constrictions of the outdated Constitution, not because of it. There is nothing magical or divine about it, as explained by former Justice of the High Court Kenneth Hayne (also a Royal Commissioner appointed by a Liberal government): The constitution sets out principles. It does not set out machinery. Machinery can and should change as times change. And it is parliament that will do that, not a referendum.

Former Liberal Minister for Aboriginal Affairs Fred Chaney supports a “Yes” vote and sees the changes as straightforward and necessary:

The idea we will do better when we hear Indigenous voices is neither contentious nor partisan. What we have learnt after years of trying is the old approach of top-down government has not worked. The simple proposition before us is whether there should be a signal in the constitution for an Aboriginal and Torres Strait Islander Voice to parliament and government. The idea behind that is not complex. It will serve to remind governments that before they take action affecting Indigenous people, they should at least hear what they’ve got to say. The need for that reminder comes from the fact that, historically, governments have sought to impose solutions rather than involve Indigenous people in the decisions that affect them.

It is also worth considering the sober assessment by the former Chief Justice of the High Court, Robert French, who advised the joint select committee on the Aboriginal and Torres Strait Islander Voice referendum:

The Voice is a big idea but not a complicated one. It is low risk for a high return. The high return is found in the act of recognition, historical fairness and practical benefit to lawmakers, governments, the Australian people and First Australians.

The “No” campaign pleads with West Islanders – If you don’t know, vote “no.” Perhaps better advice would be: If you don’t know, find out. Or If you don’t know, listen to those constitutional experts who do. Then we might get a referendum outcome based on justice, inclusion and equality, which helps to address our nation’s sad history of racism, genocide and dispossession against our First Nations peoples.