New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Black rights and white wrongs
Tony Abbott governed the nation from a tent in East Arnhem Land this week. But his display of solidarity with the Aboriginal people was distracted by the build-up to an Iraq war commitment. It was overshadowed by doubts his commitment to recognition of Indigenous Australians in the constitution can be achieved.
Few question Abbott’s genuine belief in the cause. As opposition leader he put it this way: “It’s my hope that I could be not just the prime minister but the prime minister for Aboriginal affairs. The first one we’ve ever had.” This sentiment saw him promise to spend a week a year working in an Aboriginal community should he win the election. He delivered, but not quite in the way envisaged.
Aboriginal leaders saw no slight in him interrupting his visit to farewell RAAF personnel heading off to Iraq. Nor did they mind him breaking off his program at times to utilise the “miracle of modern communication” for briefings on the latest international developments. They seized the opportunities when presented to bend the prime ministerial ear.
Respected elder Galarrwuy Yunupingu spent an evening with the prime minister, leaving him in no doubt that the “first peoples” want more than cosmetic change in any recognition referendum.
Abbott seems to be listening. He wants the recognition referendum to succeed. He’s burying the habit of a lifetime to be a national, inclusive leader. He’s held several discussions with Bill Shorten and is confident the Labor leader is onside. He’s working for a question that will win overwhelming public support. He wants a vote similar to the 90 per cent garnered in the 1967 referendum.
“It’s very clear that Yolngu people are as enthusiastic as other Indigenous people right around the country to see this great historical wrong righted in some way,” he says. But Abbott knows this is not going to be easy. His views rejecting anything that smacks of a bill of rights make him part of the problem, and some of his rabid camp followers are more than the rest of it.
Conservative cheerleader Andrew Bolt blogged that he genuinely doesn’t understand what the PM means by “great historical wrong”. He antagonistically speculated, “If he means white settlement was the ‘great historical wrong’, how precisely is that to be ‘righted’ – short of evicting everyone with non-Aboriginal ancestry?”
Of course the “wrong” is Australia’s historic failure to acknowledge the existence of Aboriginals. It took the High Court in its 1992 Mabo native title decision to overturn the lie of “terra nullius” – the empty land. That had not been addressed when the constitution was being drawn up at the end of the 19th century. The 1967 referendum went some of the way to accepting that Indigenous Australians should be counted and have citizens’ rights. The debate now is what sort of special place Indigenous Australians should have in our foundational document.
Bolt’s answer is none. “It will help change us from a country where everyone is equal under the law … to one where we are judged by race, with some more equal than others.”
Liberal senator Cory Bernardi, like others on the far right flank of Abbott’s side of politics, is resistant to significant constitutional change. A simple statement of fact in a preamble may pass muster but certainly does not entrench anything that looks like defining rights. These capital-C conservatives reject outright making racial discrimination unconstitutional.
The cross-party expert panel set up by the Labor government to advise on the recognition referendum recommended five changes to the constitution. One of them, giving Aboriginal languages a special place, has been ditched by the joint parliamentary committee now overseeing the process. The committee, chaired by Australia’s first Aboriginal member of the house of representatives, the Liberals’ Ken Wyatt, and his deputy, Labor senator Nova Peris, is now looking at the vexed question of racial discrimination.
If they stick with proscribing it, then Bernardi says the whole project is doomed. Abbott certainly doesn’t like the idea. He’s on the record saying, “The problem with a bill of rights is that it takes power off elected politicians.”
And right there in Yolngu country he came close to shattering his hosts’ dreams. “Well of course racial discrimination is unacceptable.” But he proclaimed, “What none of us really want to see is the ordinary legislation of government, the ordinary operation of the executive and legislative power too readily subject to second-guessing by non-elected judges, and that’s the difficulty with trying to entrench that kind of clause in the constitution.”
Opposition Leader Bill Shorten is more sympathetic. He believes the changes need to be more than a motherhood statement in a preamble. He supports the five proposals put forward by the original expert panel. But he agrees with Abbott and Cape York Aboriginal leader Noel Pearson that there needs to be negotiation and compromise.
Some have thought Pearson is willing to sacrifice anti-discrimination provisions. He is not. Launching his Quarterly Essay last weekend, the eloquent advocate showed the wisdom of Solomon, weighing up the competing arguments. He said advocates for the change need to take the conservative views on board. “But what conservatives in turn need to understand, in an effort to find consensus, is that for Indigenous people the movement for constitutional recognition has always been about achieving constitutional protection of Indigenous rights and interests within Australia.”
Fuelling these sentiments is the fact that under the present system these rights are far from entrenched. The Racial Discrimination Act was suspended by John Howard in 2007 to streamline his Northern Territory intervention into Aboriginal communities. Labor re-enacted the protections on coming to government. But alarm bells were sounding again after the 2013 election when the Abbott government made a priority of repealing section 18C of the Racial Discrimination Act. That was ostensibly to allow commentators such as Bolt to express racist views.
Under enormous political pressure from the weight of mainstream public opinion, Abbott took that project off the table. But there is nothing stopping him from putting it back. Next time it may be framed differently and the protection of bigots kept in the cupboard.
In the meantime, the prime minister is confident he can announce a timetable for the referendum and a process to get to a draft question within weeks. It won’t be at the next election – more like 2017. He says the only chance of success is bipartisan support. “It’s going to be difficult to run a bipartisan referendum campaign in conjunction with a highly partisan election campaign.”
Wyatt’s committee disagrees. It has been consulting the community widely and believes the people are nearly ready: “The committee’s strong view is that the referendum … should be held at or before the next election.”
Bridging the differences on the referendum is symptomatic of the enormous challenges in closing the gap between Aboriginal Australians and the rest of the community. There was no pretence of bipartisanship here. Labor took the gloves off, accusing Abbott of short-changing Aboriginals to the tune of half a billion dollars in the May budget.
Front-line services dealing with family violence, alcohol abuse, health, education and legal aid have had their funding shrink or disappear.
“If Tony Abbott wants to help close the gap, it is not enough to simply visit Aboriginal and Torres Strait Islander people,” Shorten says. “He needs to renew his commitment by reversing his unfair cuts and broken promises and lies to Indigenous Australians.”
The government shot back that it is still spending $4.8 billion on Aboriginal affairs and is taking a new approach with positive signs.
One of those new approaches is an extra $40 million boosting school attendance officer numbers. Abbott even went on truant patrol at Yirrkala and neatly supplied a new slogan for his approach: “Children need to go to school, the adults need to go to work and communities need to be safe.”
Certainly easier said than done, a lot like the referendum. Bolt already has his slogan ready for 2017 or whenever “the historic wrong” is attempted to be righted: “Say no to racism. Say no to this racial division.”
This article was first published in the print edition of The Saturday Paper on Sep 20, 2014 as "Black rights and white wrongs".
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