IN HIS ESSAY Between Fear and Hope, Martin Krygier writes that:
"… there are two very different kinds of questions constantly lurking behind debates over the worth of societies and institutions. Crudely put, one question is whether these societies and institutions could be worse; the other, whether they could be better. … Some people cherish their society and its institutions simply because they have experienced or know of much worse. Others denounce the same things because they hope for much better.”I. For Better of For Worse?
This observation about the impetus for institutional change is true about the Constitution and it is true about aspirations for an Australian Republic. As Krygier has observed, any alterations to our institutions – whether tinkering or transformation – causes anxiety to those who are happy enough with how the system works and do not want to see something that “ain’t broke” fixed. Institutional change is also the cause of much hope and expectation for those who have not felt that laws and institutions have served them as much as they would have expected.
I have argued in my book, Achieving Social Justice, that the proper measure as to whether laws and institutions work is to test them by how well they work for the poor, the marginalised and the culturally distinct. It is not enough that they only work well for the middle-class members of the dominant culture. Society should not be measured by how the advantaged fare but by how the disadvantaged are treated.
With this as the measure, the experience of Indigenous people in Australia offers a good litmus test both for the relevance and legitimacy of the Crown as the Head of State and also as to whether our Constitution reflects the values that we would claim define Australian society.
The key arguments as to why the issue of whether the Crown has legitimacy as the head of the Australian state from an Indigenous perspective are fairly straight-forward and I will deal with them in only their simplest form here. That argument would run somewhat like this:
When the British claimed Australia as part of their territory, they did so without a treaty and did not recognise the sovereignty or rights of Aboriginal people. This failure to recognise Indigenous people was to become entrenched into Australian law through the doctrine of terra nullius and even though that was overturned in the Mabo case, Australian law now tells a story that Australia was settled. This story still refuses to acknowledge the sovereignty of Aboriginal people and any of the rights that flow from that. In addition to this, at the moment of nation-building of the modern Australian state, Aboriginal people were excluded from the process. In fact, at that time, they were considered to be a dying race and the ideologies of white superiority was a prevalent underlying assumption in the negotiations of our founding document.
While the extent to which Aboriginal sovereignty exists today may be contentious to Australian governments and Australian law still struggles to identify and protect the rights of Aboriginal and Torres Strait Islander people, the exclusion of Indigenous people from the drafting process is representative of the fate of Aboriginal people under the first century of its operation. And this exclusion from the Constitution confronts us with the questions of: who does our founding document speak to and who is talking?
It was inevitable that the Constitution was going to be stacked against minorities in Australia. In his book, Human Rights under the Australian Constitution, George Williams notes that, in the conventions leading up to the final text the Tasmanian Parliament had proposed a clause that would protect a few basic civil rights. Their proposal sought to protect Australians from deprivation of life, liberty or property with due process of law and it also sought to give Australians the “equal protection of its laws”.
However, the clause was rejected because the Constitutional framers, adhering to the British tradition, believed that the balancing of rights was better undertaken by the government and did not need to be entrenched in the Constitution itself. Also, the framers believed that it was necessary to ensure that Australian states could continue to enact laws that were racially discriminatory particularly to regulate the lives of Aboriginal people and to restrict the movement of Chinese people and South Sea Islanders. A testament to this intent was the “white Australia policy” or Immigration Restriction Act legislation that became the first laws passed by the new Australian parliament.
With such a beginning to the story, it was not surprising that the tale of Indigenous people under this Constitution was not a happy one. It provided a framework for a plethora of racially discriminatory laws that restricted movement to and from reserves, regulated marriage and did not guarantee citizenship rights or equal pay.
I will use just a few moments in that one hundred years to highlight the way in which our constitution has failed to protect the Indigenous people who were excluded from its drafting and I will choose examples from the latter half of that century when Australians would have a better understanding of the notion of universal human rights that did not exist in their modern form at the time our Constitution was written.
In 1997, the High Court heard a claim by Aboriginal people from the Northern Territory who had been affected by the Ordinance that had facilitated the removal of Aboriginal children from their families. The plaintiffs had based their case on a breach of a series of rights that they claimed were protected by the Constitution. They claimed the breaches of the rights to due process before the law, equality before the law, freedom of movement and freedom of religion. They were unsuccessful on each count. This was not a case that was run on what we would consider Indigenous rights; it was a case that was run on rights that would assume to be held by all Australians. This result highlights how the rights many might assume to be protected by Australian law are not and it also shows that where our Constitution is silent about the protection of rights, it is the disadvantaged within our community who are the most vulnerable to their violation.
Many might think that the 1967 referendum was the point at which the Constitution was altered to take into account the presence and rights of Aboriginal people that were missing when the founding document was drafted. It should be noted that there is a lesson in here for those seeking any kind of constitutional reform and that is the need to ensure a broad, bi-partisan support to carry the necessary majority needed to vote in the change. How to capture this broad support for a republic is an issue I will address later.
While it is often claimed that the 1967 referendum was the moment at which Aboriginal people got citizenship rights or the right to vote, the amendments did two things: provided for Aboriginal people to be included in the census and to give the federal government the power to make laws for Aboriginal people. Looking at the intention of those who advocated for the “yes” vote, it is clear that there was an underlying assumption that, when the federal government exercised its power to make laws for Aboriginal people, it would be to protect and benefit them.
Despite this intention, the High Court, in interpreting the races power, has said that if the parliament has the power to make a law, it can also repeal it. In this way, when Doreen Kartinyeri sought to enforce heritage protection laws that were being repealed to ensure that the Hindmarsh Island Bridge could be built over her traditional and sacred land, the court told her that, if the federal parliament can grant heritage protection, it is free to take it away if and when it so chooses. Indigenous people have not fared too well being beholden to the benevolence of governments for rights and recognitions. From the continual extinguishment of native title rights to the abolition of a national representative structure, the experience of Aboriginal people often highlights how dependent we are on the benevolence of governments that too often do not have the best interests of Aboriginal people at heart.
II. The Need for an Australian Republic
There are two aspects of the Indigenous experience under the Australian constitution that highlight both the need for a new moment of nation-building and the need for constitutional change.
The discriminatory impact of legislation on Aboriginal people highlights not just that rights protections are missing from the Constitution but that certain values that we claim are an integral part of the Australian ethos are not included in the document to guide its interpretation and effect.
For example, the notions of “a fair go for all”, “an even playing field” and “treating every one equally” are colloquial ways of saying that the principles of non-discrimination and equality of opportunity are claimed to be part of the Australian culture. The implementation of those values are often skewed by prejudices and policies driven by “economic rationalism”, and in the past this has been applied in a manner that sees “a fair go for all and a fairer go for some”, but I would argue that the basic concepts of equality and freedom from racial discrimination are values most Australians would claim to embrace, even if we see evidence to the contrary.
While many Australians embrace these values, they perhaps do not see the importance of folding them into our constitutional framework. However, to ensure that they are more than mere rhetoric, to ensure that there is some substance to them, they do need to be included within our constitutional framework in order to give them meaning. This enshrining of those values is a key step towards creating an independent Australian national identity.
And in order to create this identity, there needs to be a nation-building exercise and this is perhaps the other reminder of the role that Aboriginal people play in testing our institutions. Excluded from the previous moment of nation-building when our constitution was drafted, Australia will not mature into a just society that until the nation building processes have included Aboriginal people. Evolving into an Australian republic is a moment that offers this opportunity. And it is a moment at which the many other sectors of the Australian community that were excluded from the original nation-building exercise can place their stamp on our country. When we get an opportunity to amend our founding document so that it reflects our independence and identity as Australians, we should not make the same mistake as our founding fathers in creating a Constitution that only speaks for a narrow slice of the population.
III. Building a New Australian Nationalism
To bring the nation together, there needs to be a vision and an identified set of values that are considered truly Australian. The notion of the nation is in some ways an artificial one. As Benedict Anderson has famously defined them, they are “imagined communities’, that bring together millions of people into a supposedly shared history, identity or fate. Although they are constructs, the national pride that comes from watching Cathy Freeman win Olympic gold or Australia II win the America’s Cup or seeing returned soldiers march on ANZAC day seems very real.
There are many types of nationalism, the worst being based on an ethnic identity and a purported, often romanticised shared ethnic history. These types of nationalisms create conflict and misery, exclude and even despise others. We have seen this type of nationalism in the conflict between the Serbs and Croats and in Nazi Germany.
However, there are other types of nationalisms that are more hopeful and inclusive. They are nationalisms that are built around a shared political creed. This is a civic nationalism because it imagines a community of equal citizens who share the same rights regardless of race, gender or religion.
An Australian Republic is an opportunity to refocus on the building of this kind of civic nationalism and it is a vision that is all the more important at this moment because Australia currently seems to be in the midst of an identity crisis. To be more precise, non-Aboriginal, particularly white, Australia is going through an identity crisis. This crisis is manifested in the so-called “history wars”, the debates that have seen academics squabble with non-academics and journalists over the number of Aboriginal people killed on the frontier, argue over whether massacres took place or whether there were massacres at all and engage in semantic debates over the terms “genocide” and “stolen”. These “wars” are not about Aboriginal history; they are battles about white history and, more importantly, they are about white identity. They are battles about how non-Aboriginal Australians come to term with the dispossession of Aboriginal people.
In addition to this important battleground, there is the increasing fear in the general population that is making it more introverted and less trusting. It is a fear generated from both the increasing economic vulnerability of the working and middle classes as a result of neo-liberal economics and it is a fear that is also generated from the political mileage being made on the “war on terror”. To quote Martin Krygier again, this time on the crippling effects of fear in the general populace:
“For fear is not only frightening; it is typically also degrading, humiliating and paralysing. There is nothing to be said for it. Fear degrades those who suffer it, and equally those who inflict it.”
Ghassan Hage, in his book A Paranoid Nationalism, charts the competing fates of Australia as a result of this increases fear. He writes when describing the difference between what he calls “the caring society” and the “defensive society”:
The caring society is essentially an embracing society that generates hope among its citizens and induces them to care for it. The defensive society, such as the one we have in Australia today suffers from a scarcity of hope and creates citizens who see threats everywhere. It generates worrying citizens and a paranoid nationalism.
It is Hage’s vision of the caring society that offers the pathway to a society that can treat all of its members – regardless of race, socio-economic background and religious belief – equally, justly and fairly. And it is vision of paranoid nationalism predicts a society that is insular, xenophobic and seeks to exclude. In such an Australia, it is hard to see the requisite generosity of spirit and the necessary civic responsibility for a society that values fairness, equality and justice. It is this vision of a caring society that envisages a unified country, an inclusive population.
By reclaiming and reinvigorating the values of “a fair go for all”, “an even playing field” and “treating every one equally” as the principles of non-discrimination and equality of opportunity we further to work towards the caring and inclusive society.
Eva Cox, in her Boyer Lectures, A Truly Civil Society, makes claim on some other values that should shape Australian society. She writes:
My vision of a very civil society involves social connections with political life. Politics must combine the valuing of difference, intertwined with rights and responsibilities, and collective and democratic involvement in decisions which affect us.
One of the core elements in Cox’s ideal civil society is to undermine the focus of governments and policy makers on the “lone, greedy figure of the Economically Rational Man” and refocus on the importance of building communities, relationships and trust.
These aspirations for a civil society are contested but the debate and discussion about what the content and principles of such a “civil” “society” should be is an important national conversation. It is the very public conversation that necessarily involves all sectors of the community and it is a conversation that should be is a new opportunity for nation building.
IV. A Vision for Change
Mark McKenna, in his book This Country: A Reconciled Australia, identifies one of the key failings of the 1999 republic referendum as the inability of the campaign for the “yes” vote to capture the imagination of the Australian people. McKenna argues that there is a need for those who want to see Australia become a republic to make that vision relevant to the broader Australian community.
McKenna sees the two issues of an Australian republic and of reconciliation as tied. He understands that two unresolved questions about Australian identity are the continued connections, even if symbolic, to the British Crown and the relationship with the original sovereign nations of Australia.
I agree with McKenna that both the issue of becoming a republic and of achieving reconciliation with Aboriginal and Torres Strait Islanders are the two major stepping-stones that Australia must reach to in order to achieve a just society. However, I would suggest that there is a different approach to achieving both that differs slightly from his, though not from his vision.
While McKenna advocates the need to use the vision of a reconciled Australia to capture the imagination of the community for an Australian Republic, I believe that the vision of the civic society is one that can play the role of inspiring Australians to embrace true independence. This approach sees the vision of the civic society as the stepping-stone towards a reconciled Australia. That is, it seeks to create the kind of Australia that has the capacity and civic spirit to engage in a meaningful process of reconciliation with Aboriginal people.
This is a more pragmatic approach than McKenna’s and seeks a middle step in the process of reaching a reconciled Republic for the following reasons.
Firstly, there is the increasing exasperation of Aboriginal people with the reconciliation process. While reconciliation continues to be a dynamic process at the community level, it is a movement that has lacked political leadership. In an era when Indigenous rights are ignored and even extinguished, when the national representative structure has been dismantled and basic Indigenous health needs are under-funded by an estimated $750 million, it is a hard ask for Aboriginal communities to engage in a process of meaningful reconciliation. It is a hard ask of Aboriginal and Torres Strait Islanders to believe that governments have a genuine interest in reconciliation on the one hand while they fail to address the immediate and structural needs of Aboriginal communities on the other. A nation-building process that seeks to transform Australia into a society with a regenerated sense of civic responsibility will be a process that will renew trust with sectors of the Australian community that have felt marginalised within the current political climate.
"King Billy" Jimmy Clements
The second reason for a more pragmatic approach to reaching a reconciled Republic is that Aboriginal people have been suspicious about the extent to which Australians will use a new Republic as a mechanism for absolving the Australian state of responsibility for past wrongs. McKenna identified this fear amongst Aboriginal people in his work. His most evocative example is that of Jimmy Clements, or King Billy, attending the opening of Parliament House in 1927 to remind the Duke of York that Aboriginal sovereignty had not been extinguished. Aboriginal people have always contested the British claim to Australia and we have continually sought recognition of and reparation and compensation for the atrocities that have occurred in the process of colonisation – from dispossession, genocide, cultural genocide and rights violations. Aboriginal people have understood that the British Crown bears responsibility for these atrocities that have been experienced by Aboriginal people and their families. The fear that the Republic will be used as an excuse to wipe the slate clean is understandable since the 1967 referendum has similarly been erroneously promoted as a moment in which Aboriginal people were granted equality.
However, a Republic movement that embraced the vision of a civic society can also promote a message that an Australian republic is not a moment at which Australia will wipe the slate clean, but rather will create the moment at which real reconciliation and recognition of past wrongs can begin.
There is, of course, a third reason for such pragmatism and that is that it will be easier to inspire Australians with a vision of a civic society because they can then see how such an energised community will have benefits for them and their families than it is to inspire people to embrace a vision that focuses on the improvement of the socio-economic position of Aboriginal people through a renewed reconciliation process. The general population is, according to social researchers and commentators, too inward looking and fearful to look beyond their own immediate interests.
Using a vision of a civil society to inspire movement towards an Australian republic is a marriage of pragmatism and vision. It would be an agenda that would seek to alter the constitution to ensure an Australian head of state and to erase the other trappings of a British Crown from our legal system. But it would also include a few principles that would seek constitutional and legal change that would help form a civil society in Australia.
I would flag the following principles for inclusion as part of the vision for the values enshrined in an Australian republic:
- due process before the law and equality before the law – these enshrine the importance of the rule of law in a civic society and develop trust that people will be entitled to the protection of the rule of law;
- freedom from racial discrimination and equality of opportunity – which are the embodiment of a contemporary interpretation of “a fair go” and “an even playing field.”
his agenda seeks to pick out a few key principles for inclusion in the constitution. It does not call for a bill of rights to be enshrined in the Constitution itself but would seek to include a few basic but important foundations for a civic society.
I would, however, argue that this constitutional reform should be complemented by a legislative bill of rights that would offer a more comprehensive list of rights to be protected. I favour a legislative bill of rights because, while it leaves the balancing of competing rights to the legislature rather than the judiciary, by keeping these debates in the hands of governments it allows for citizens to be far more involved and influential in those decisions through lobbying and through their votes at election time. Having some principles enshrined in the constitution will guide the interpretation of a legislative bill of rights. The public debates about how to balance rights – such as the right to privacy over freedom of speech – becomes a process that engages the community in an on-going dialogue over what kind of society we want in Australia and this assists in creating a reinvigorated democracy.
V. The Way Forward
This pathway forward is much less ambitious than McKenna’s but owes much to his vision that – to succeed with an Australian republic, it must capture the hearts and minds of Australians. And by understanding that an Australian Republic is about our coming of age as a nation, and that in order to make such a step meaningful, it must encapsulate the very values that we claim make us uniquely Australian. This energised and visionary republican movement would create the environment in which to energise other movements that seek would protect and enshrine those Australian values such as the call for a bill of rights and working through the finished business of reconciliation. It would provide a better environment to achieve concrete and meaningful outcomes for Aboriginal people such as a treaty process and a preamble to the Constitution that recognises prior ownership, historical injustice and sovereignty. Far from complicating the republican campaign, these various movements designed to empower and protect the values of society complement each other and their resonances should be explored rather than downplayed.
The challenge is that any vision needs to be able to speak to the values that Australians will embrace during a time of increased conservatism and fear of change and the unknown. But it seems to me that the fundamental principles we need to ensure a vibrant civil society offer the very principles that would allow for such a broad, inclusive embrace – like the notion of an even playing field and the notion of equality of opportunity. These principles also assist in re-establishing trust between those who govern and the governed.
Such a reinvigorated and engaged society would be then better able to address some of the more difficult social issues that continue to remain unresolved in Australia.
Australians should support the move to a republic that embraces the principles that we maintain give our society its strength. Aboriginal people should support such a vision of Australian society because, rather than being a moment at which past wrongs are forgotten, it will be an environment more conducive to dealing with the outstanding issues of reconciliation than could ever be achieved in the current political environment.
If laws and institutions are to be tested by how they work for the poor, the marginalised and the disadvantaged, the challenge for the republican movement is to work towards building Australia’s constitutional independence with the same vision and the same tools that will provide an inclusive, civil Australian society.
©Larissa Behrendt is the Professor of Law and Indigenous Studies at the University of Technology, Sydney. Thanks to Geoff Scott, John Bowdler, Mark McKenna and George Williams for feedback on earlier drafts of this lecture.
 Martin Krygier. Civil Passions: Selected Writings. Black Inc Press, 2005. At p.147.
 Larissa Behrendt. Achieving Social Justice: Indigenous Rights and Australia’s Future. The Federation Press, 2003.
 See George Williams. Human Rights Under the Australian Constitution. Melbourne: Oxford University Press, 2000.
 Kruger v Commonwealth (1997) 190 CLR 1
 Kartinyeri v. Commonwealth (the Hindmarsh Island Bridge case) (1998) 195 CLR 337.
 Martin Krygier. Civil Passions: Selected Writings. Black Inc Press, 2005. At p.149.
 Ghassan Hage. Against Paranoid Nationalism: Searching for Hope in a Shrinking Society. Annandale: Pluto Press, 2003. At p.3.
 Eva Cox. A Truly Civil Society. 1995 Boyer Lectures. ABC Books, 1995. At p.69.
 Eva Cox. A Truly Civil Society. 1995 Boyer Lectures. ABC Books, 1995. At p.71.
 Mark McKenna. This Country: A Reconciled Republic? UNSW Press, 2004.