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Wednesday, 27 February 2013
Page: 1172


Senator RYAN (Victoria) (18:33): I rise today to address the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 and to explain my own journey on this issue. I begin by acknowledging the comments of Senator Brandis and my other coalition colleagues, who have outlined in great detail the great Liberal record with respect to Indigenous issues and representation in recent years. From Neville Bonner to Ken Wyatt, from the Aboriginal Land Rights Act to the intervention, the Liberal Party has been at the forefront of addressing historical injustices faced by Australia's Indigenous people. These details must be outlined again due to the tendency of some on the other side who seem determined to paint only their preferred colour of the pallet of our history.

I will admit that I began as a strong sceptic of this proposal. I did not vote for the preamble in 1999. I do not believe in the politics of identity that has infected so much of our liberal democracy over the past four decades. Identity has replaced class as the dominant oppressive force of the left and the new means of disregarding the individual. To the advocates of identity politics, the individual disappears into a group based on a characteristic they have no control over and determined by self-appointed representatives to take precedence over their individuality. Whether it be race, gender, sexuality or another concept, identity politics is the new tool of the forces of illiberalism—those who devalue the individual in terms of their power to determine their own fate or who deride their freedom and ability to choose for themselves, and where so-called 'group rights' are used to trump our status, dignity and freedom as individuals. So I initially found very troubling the acknowledgement of one group of people in our founding political and legal document, particularly when it is based on race.

I know there are debates regarding the terms 'people' versus 'race', but those arguments are a distraction, avoiding the substantive issue in this case. To many classical liberals, and I proudly describe myself as such, the notion of making a group of people exceptional and defining them in law is a troubling one. And, due to its history as a basis of discrimination and persecution, race is particularly problematic. Indeed, this is a wrong we are seeking to address in our Constitution in this debate. After all, it is due to the great success of liberalism over two centuries that racism has been purged from civilised society and debate. So my heart and mind are dedicated to opposing any form of racism. I find it obnoxious.

I do not wish to imply or accuse anyone in this debate of racism; I am merely explaining the liberal sensitivity to it, which I share. So, given my initial scepticism, I was asked by people whose judgement and motivation I trust to reconsider my position and open my mind to the unique experience of our Indigenous people. I recall in my studies at the University of Melbourne coming across this Indigenous challenge to liberalism. David Tucker, one of my lecturers, knew more about liberalism than most, and he outlined this challenge in great detail, saying it remained unfinished business—a problem for which liberalism had not yet developed a response. For the truth is that, in our past, the law did define Indigenous people and the lives they could lead by their race. As Indigenous people were treated as a group rather than as individuals, their racial identity did define them, regardless of their own choices. Their experience of the Australian body politic was defined as much by legal discrimination and identity as it was by their individuality.

It was explained to me that the recognition of this common experience and the historical facts prior to modern Australian settlement would add a great deal to the meaning of citizenship for many of our Indigenous people, for whom opportunity was denied and legal status was pre-determined for no reason other than the colour of their skin or the race of one or more of their forebears. So, like many others who began as sceptics, I have tried to open my mind, attempting to understand how this might add to our common citizenship without dividing the Australian people nor instituting group rights at the expense of the individual. I hasten to add that, in the words of my colleague Senator Brandis, to achieve this we must be respectful. We also must be cautious.

This bill is a significant step; but the key step, the crucial step which cannot be avoided by any sentiments expressed in this place are the very words we eventually choose to put before the Australian people in a referendum and in the course of the public debate. This bill empowers that discussion. This mechanism has not been used previously to generate community consensus, so I support this bill. But we do need to show, to all participants, respect and caution about how we go about this process, not only because there are many people who remain to be convinced, who fall into the category of those sceptical or hostile to the notion of law recognising or institutionalising race—although I believe there are many such people—but because of the key reason outlined before many speakers before me: that to propose and fail at this referendum would be a profound step backwards.

So, the tone of the debate—the discussion of our history and our nation—needs to respect the achievements as well as the failings, the elements of which we should be proud as well as those we wish we could change. This is necessary to ensure that those who may start with a slightly different view do not feel that those elements of our history that they cherish will be devalued through this debate.

There are always things we wish we could change about our past, as a nation and likely as individuals. We may wish there were no blots on our past, but history is not like that. One will not find perfection by looking back. To seek it is to guarantee disappointment. But there is a lot to be proud of, even when discussing this bill and its promised referendum. For there are many like me who do not share the dim view of Federation expressed by some. This bill—and, if it is to be successful, this debate and future proposal—cannot be used to denigrate the formation of the Commonwealth of Australia, one of the great achievements of liberal democracy.

Federation was the result of the thrust of 19th century democratic Australian liberalism. Liberals of all strains supported it, while the labour movement opposed it. Was the formation of our federation perfect? No, it was not. But those of us who heed the words of Edmund Burke do not expect or hope for perfection in our politicians or leaders; indeed, we are wary of those who promise it. Yet it was an extraordinary democratic exercise, especially at that time. No nation with a democratic tradition as long as Australia's can claim such a democratic heritage. In many ways it is republican in the truest meaning of that term. Our constitution was drafted by representatives of the people, elected by them. It was then approved by the people in referenda. Only then was it sent to London, along with the elected representatives of the people, for political ratification and formal legal implementation via the parliament at Westminster.

This is a story of which all Australians should rightly be proud, but that does not mean uncritical. I stated earlier that it was not perfect, but no political process ever will be, and neither will the people involved in it be any more perfect than we are. In that sense I am referring to the words of Edmund Barton quoted earlier in the debate by Senator Siewert. I find them offensive. But it is the very success of our liberal democratic polity that has made such attitudes no longer acceptable. Political debate always partially reflects community views, and it is regrettable but true that those views were predominant at the time. I do not seek to justify them, merely to outline that fact.

The truth is that any power over Indigenous affairs in our Constitution at Federation would likely have led to similar policies to those that occurred under state governments. A different clause in our Constitution would not have changed attitudes in 1901. But nowhere else in the world did as many people have the right and the opportunity to participate in forming their nation. No body politic has a halo.

I know this bill is bipartisan, and I do not wish to provoke rancour, but I feel I must also correct the record when it comes to this remarkably democratic process that formed Australia. In the Prime Minister's speech in the other place, she stated:

Indigenous people did not ordain our Constitution, nor contribute to its drafting. They had no opportunity to vote for it, and yet all were affected by what it said and failed to say.

It is simply not true that Aboriginal people were universally denied the opportunity to participate in the elections and the Federation referenda. Indeed, in 1901 there was no statutory bar on Aboriginal voting in Victoria, New South Wales, South Australia, the Northern Territory or Tasmania. There were legal bars in Queensland and Western Australia. This is not to say that there were not other restrictions, but there was no specific legal prohibition on the right of Aborigines to vote across the colonies. The truth about the ban on Aboriginal voting needs to be told. The Constitution did not do this. The ban came later, and it was not the drafters of the Constitution or the people who instituted it by a referendum. The responsibility can be sheeted home to this place, the parliament.

Every Australian child is taught that we were the second nation to grant women the vote after New Zealand, and this is true. But the full story needs to be told whenever we teach this. Section 3 of the Commonwealth Franchise Act 1902 granted the vote to women. Section 4 took it away from all Aboriginal people. So, an act of this parliament about which we are so rightly proud for one reason also contains what we would all regard now as a profound moral error. I say again: no body politic has a halo. This ban was removed in 1962 by parliament, five full years before the 1967 referendum which reflected the significant change in community attitudes by amending our Constitution with a record majority. I note that both these initiatives occurred under Liberal prime ministers.

I want to turn to Section 25 of the Constitution now. It is often quoted as an obnoxious section due to the link between the franchise and race. My personal preference would have been to remove the race power altogether in 1967, but I was not born for another six years. As I stated earlier, we cannot amend history. As I outlined above, I find legalised racial notions obnoxious. I would personally remove section 25. But the background to Section 25 needs to be explained—again, to defend our Federation and our Constitution. Section 25 does not represent a power to prevent people voting on the basis of race. That power was not explicit in the Constitution as it did not need to be. The states had the power to determine their own franchise. Section 25 is a penalty provision for those states that implement a racial restriction on the franchise. It represents the lessons our founding fathers learnt from the US Constitution. It applies a penalty to any state that restricts the franchise by removing those people from the census and consequently for the purpose of assigning seats in the House of Representatives.

So a state that banned people of one race from voting would see itself penalised by likely having fewer seats in parliament. It represents a repudiation of the infamous three-fifths clause of the US Constitution, outlined in article 1, section 2, clause 3. This gave the slave states greater political power by counting slaves as three-fifths of a person for the purposes of assigning members of the US House of Representatives and, consequently, the presidential Electoral College. That original clause in the US Constitution empowered state based racism. It was removed by section 2 of the 14th amendment following the Civil War. But Section 25 of our Constitution is the opposite: it punishes such measures and it repudiates that infamous philosophy.

In conclusion, there have been many contributions to this debate. Some have outlined preferred words and clauses or concepts for a future referendum. I rise in support of this bill, but I also offer a warning, made with my best intentions. Any referendum proposal needs to address those who share a concern, scepticism or even an initial hostility to the legal recognition of race. The debate must not disparage those who have yet to be convinced. It must persuade, not hector. And it must not overreach. I differ from those who propose far-reaching change to our Constitution, although I respect their views. I implore them not to seek to achieve other objectives through this process.

Do not seek a constitutional rearrangement of the roles of the legislature and judiciary, especially with respect to determining discrimination. Such a path will only provoke resistance.

And while bipartisanship is a necessary condition for success in a referendum, it is no guarantee. Indeed, on the same day in 1967 that 90 per cent of people voted for the referendum deleting section 127 and amending the race power, a bipartisan-supported referendum proposing the removal of the constitutional nexus between the House and the Senate was comprehensively defeated, with only 40 per cent support. More than half of the people who voted yes on one ballot paper voted no on the next one, despite them both having bipartisan support.

The Australian people take the notion of a referendum very seriously. It is probably the greatest legacy of the drafters that they prevented politicians from changing the Constitution. As it can only be altered with the direct consent of the people, it remains their property, reflecting their sovereignty. This makes a referendum a uniquely potent tool, but it also puts a high bar before politicians, whose role it is to initiate the process. We must be judicious and remain conscious of the record of referenda. I look forward to participating in this process and debate during the period outlined in this bill, and I commend the House on supporting it.