A step sideways for Aboriginal recognition

This isn’t a blog about Australian politics, but sometimes there’s a local story that’s not just interesting in itself but has wider application. That’s the case with a remarkable feel-good piece by Michael Gordon in today’s Age on the “recognition” of indigenous Australians.

The occasion is the Aboriginal and Torres Strait Islander Peoples Recognition Bill (pdf here), due to pass the House of Representatives today. According to Gordon, it “will give momentum to the push to recognise” indigenous people, being “the forerunner to a referendum to enshrine this recognition in the constitution.”

It’s a sad sign of the state of the media that the Age has plenty of room for inspirational quotes and anecdotes about the struggle of indigenous people, but none to tell its readers what the bill actually does or why this procedure has been adopted. So let’s look quickly at the background.

Following the last election, the Gillard government appointed an expert panel to advise on constitutional recognition of indigenous people. Its final report, presented just over a year ago, recommended a series of constitutional changes, but also pointed out that bipartisan agreement would be a necessary condition for putting them to a referendum.

Despite some optimistic reporting (from, yes, the Age again), it quickly became clear that that agreement was not forthcoming. Put briefly (I went into more detail at the time), the problem is that any change in the race-based sections of the constitution would want to be accompanied by a non-discrimination provision, and the opposition will not agree to that because it is too reminiscent of a bill of rights.

Late last year the government bowed to the inevitable and announced that the referendum would be deferred indefinitely. Unwilling to be seen to be doing nothing at all, it introduced the current bill instead.

The bill has only two substantive elements: firstly, a statement by parliament recognising that Australia was “first occupied by Aboriginal and Torres Strait Islander peoples” and that they have a continuing relationship “with their traditional lands and waters”, and acknowledging and respecting their “continuing cultures, languages and heritage”; and secondly, a requirement for the government to hold a review, to report within 18 months, of the prospects of a referendum.

But there is no timetable for actually holding a referendum and no hint of a way around the deadlock that stymied the government’s original plan. The idea that the bill represents a step forward on a referendum is simply not true.

Nor is there any reason to think that the legislative recognition is of any use to anyone. It says nothing different to what our leaders have been saying for decades; probably no Australian politician in the last 60 years would have disagreed with its sentiments. Elevated statements of general principle, if they belong anywhere, belong in the constitution.

There were good reasons why the expert panel recommended against taking the legislative route, and indeed specifically said (p. 224) it “would be concerned if legislative action were to be used as a substitute for, or distract from, a referendum on constitutional recognition.”

The deadlock over constitutional amendment is not in principle insuperable; if there was strong political pressure on the Coalition to come to an agreement, then no doubt some form of words could be found that would bridge the gap. But that is not the case: the Coalition’s core constituencies have approximately zero interest in Aboriginal reconciliation, so for Tony Abbott there is no downside in holding to his position.

The moral here is twofold. First, constitutional change is about specifics. You can’t pass a fuzzy notion into law, you can only pass actual words. They may be fuzzy words, but there has to be agreement on one actual set of words rather than another. If it’s not possible to find words that meet the competing demands of different interests, then no amount of “agreement in principle” will change that situation.

Second, politics is all about finding ways to overcome differences – ways that we can live together and get things done despite conflicting values and priorities. It may be a bad way of doing that (indeed I think it usually is), but that’s what it’s for. If instead we use the political process to produce motherhood legislation that doesn’t achieve anything and doesn’t settle any real controversy, we’re just wasting everyone’s time.

*UPDATE 13 FEB.* Now SBS is at it too. Tonight’s World News Australia told us that parliament “passed symbolic legislation paving the way for indigenous Australians to be formally acknowledged in the constitution.” Nonsense.