Review of “The Break-up of Australia: The Real Agenda Behind Aboriginal Recognition” by Keith Windschuttle. Review by Augusto Zimmermann.
Aboriginal activists often contend that the Australian Constitution is a racist document that discriminates against Aborigines. They express a desire to remove “racist” provisions of the constitution, and to add a new preamble that recognises the “first inhabitants” of Australia and potentially their special rights as the traditional custodians of the land.
Contrary to these claims, the Australian Constitution is positively not a racist document. On the contrary, as Windschuttle points out, most Aborigines had full citizenship in 1901. Even before Federation, “the great majority of Aborigines had the same political rights as other Australians, including the right to vote, which the Constitution guaranteed in Section 41” (p2).
Nonetheless, section 25 of the Constitution is often interpreted as contemplating a denial of the franchise on the grounds of race. … As noted by Windschuttle, the reason the section was included in the Constitution is because in the 1890s Queensland and Western Australia did not allow full-blood Aborigines to vote in state elections. That being so, the constitutional framers wanted to bring those states into line with all the others, where Aborigines did have the franchise.
This provision was therefore designed to penalise the states that discriminated against Aborigines by reducing their representation in Federal Parliament. Rather than denying Aboriginal people the franchise, the framers of the Constitution actually supported giving all Aborigines voting rights from the very outset.
Another passage in the Constitution that Aboriginal activists identify as racially offensive is section 51 (xxvi). This reads in full: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxvi) The people of any race, for whom it is deemed necessary to make special laws.”
However, as Windschuttle notes, not once since Federation has section 51 (xxvi) lent support to unfair discrimination on grounds of race. On the contrary, in Kruger and Bray v Commonwealth (1997), Justice Dawson stated that the powers given under this provision “were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally”.
Aboriginal activists often complain that Aborigines are not acknowledged in the Australian Constitution. Yet, as Windschuttle correctly reminds us, the Australian Constitution is primarily a federal charter. It is a practical compact to establish a federal system, not a synopsis of Australian history: it was never intended to be a document reporting on the history of the Australian people. …
We got here first:
Windschuttle argues that these activists want us to recognise the “distinct rights” that purportedly flow to Aborigines because of the fact they are descendants of the first peoples. …
For Windschuttle, “we got here first” is a much poorer constitutional principle than “we are all created equal”.