The debate over the constitutional recognition of indigenous people is continuing. Keith Windschuttle argues that principle premise of the expert panel is wrong. He says that the Constitution does not contain provisions which could be considered racist. Indeed, he argues that it was not the intention of the Founders to discriminate against the Aboriginal people in the two sections targetted by the expert panel.
Mr.Windschuttle is a prominent participant in indigenous affairs, and has researched and published widely on these matters.
He has argued that some key conclusions which have been accepted among academic historians are at least questionable. He has also questioned whether the research which supported those conclusions demonstrated the rigour one would reasonably expect.
Rather than debating him, the reaction has too often been personal, dismissive and abusive.
In relation to the panel report on recognition, he made two major points in a piece in The Australian, “The Constitution is anything but racist,” (24/1).
The first was about the call to repeal section 25. This states : "For the purposes of the last section, if by the law of any State, all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of people of the State or of the Commonwealth, persons of the race resident in that state shall not be counted."
It is said that section 25 contemplates a denial of the franchise on the grounds of race. Keith Windschuttle argues the real reason this was included was because Queensland and Western Australia did not allow full-blood Aborigines to vote in state elections.
He says that our Founders actually wanted a measure to bring both states into line with all the majority of states where Aborigines did have the franchise. He says the section was designed to penalise any state that did not conform. This was to be done by reducing their federal representation – a powerful lever.
In other words, rather than denying them the franchise, the framers of the Constitution supported giving all Aborigines that right from the very outset.
The second point relates to section 51( xxvi) , which says the parliament can make laws with respect to "the people of any race for whom it is deemed necessary to make special laws." The panel says this could support laws discriminating against aboriginal people.
Mr. Windschuttle denies this. In a response to law student Michael Brull's commentary on the ABC’s website, The Drum, he includes, among other authorities, this conclusion by Justice Mary Gaudron : “s 51(xxvi) will not support a law depriving people of a particular racial group of their citizenship or their rights as citizens.”
Mr. Brull’s commentary is not improved by his personal attacks on Mr. Windschuttle, especially the argument that because Mr. Windschuttle is not an authority on constitutional law, he has no right to publicly discuss the subject.
Mr. Windschuttle ‘s response incisive follows:
“Yet very few members of the government's panel who wrote the report would be regarded as constitutional authorities either. Most are either Aboriginal political activists or academics in fields other than constitutional law.
“The main spokesperson for the report, Marcia Langton, is an anthropologist and geographer not a lawyer. However, Brull does not argue that her lack of appropriate qualifications should have excluded her from the panel.
“Indeed, on his very own grounds, Brull should have disqualified himself from commenting too. He is no constitutional authority. He is a law student, and a badly misinformed one at that.”