Leading historian, author and Quadrant editor, Keith Windschuttle ,reluctantly but unavoidably could not join the panel at ACM’s 24th National Conference on 9 October 2023, but urgently prepared the following paper for the Conference.

Paper to ACM conference 9 October 2023

This morning in The Australian newspaper, George Williams, a professor of constitutional law at the University of NSW, used the regular space that newspaper gives him, to reprise much of the original case that he and Megan Davis have been using for years to support the idea of constitutional change for Aboriginal people. Their case makes a number of claims, which I will list here under the category of the Yes case, which are all verbatim quotations from the book by Williams and Davis titled Everything You Need to Know About the Referendum. I will reply to each of these claims here, under the category of the No case.

Yes:

The Constitution was drafted to exclude Aboriginal and Torres Strait Islander peoples from the political settlement that brought about the Australian nation. We need to fix that historic exclusion.

No:

Aboriginal and Torres Strait Islander peoples were not excluded from the political settlement that produced the Constitution. Like all other colonial Australians, Aboriginal people had the right to vote to appoint the delegates to the Constitutional Conventions in the 1890s and to approve the eventual Constitution when in 1899 it was put to the people for final consent. There was no ‘historic exclusion’ of indigenous people. At Federation, our Constitution made Australia widely recognised as the most democratic country in the world. In the Australian colonies before 1901 and in the nation and states after Federation, the great majority of Abo-rigines had the same political rights as other Australians, including the right to vote, which the Constitution guaranteed them in Section 41. The then sparsely populated states of Queensland and Western Australia, where there were property qualifications for voting, were the only exceptions. Aboriginal people were active participants in colonial elections throughout the 1890s in New South Wales, Victoria, South Australia and Tasmania, and in the same states after Federation. Claims that the Constitution denied Aborigines the right to vote, and therefore denied them citizenship and excluded them from the nation, are myths based on political fabrications and shoddy legal scholarship.

Yes:

It is important that the Constitution, the founding document of the nation, recognises Australia’s full history; not just the period from British settlement.

No:

The Constitution was never intended to be a history of the Australian people. It does not mention the history of any particular ethnic group, and there is no good reason

to make an exception for Aborigines now. It is a legal compact between the people of the six former colonies to form a nation, and its principal function is to distribute various powers between the Commonwealth and the states. It is a practical charter of government, not a synopsis of Australian history. Moreover, the Yes case here confuses the history of the continent, which has been occupied by Aboriginal people for more than 40,000 years, with the history of the nation, which was formally created in 1901 and whose origins date back only to 1788. While Aboriginal people had full citizenship in 1901, none of their ancient laws were adopted into the Constitution, not for racist reasons but because they were not applicable to the needs of a modern industrial and commercial society. The history of Aboriginal people before 1788 is an enthralling topic, but it is not the history of the Australian nation.

Yes:

We need to remove discrimination from our Constitution. It should prevent, rather than permit, racial discrimination so that all Australians are treated equally.

No:

Left-wing academics and Aboriginal activists have been trying for decades to transfer decision-making about Aboriginal affairs from parliaments to the High Court, where they get a more generous hearing. Their claims that the Constitution discriminates against Aborigines are part of this ploy, and are based on false claims about a decision the court has never made. One of the Constitution’s two sections they want to repeal was reworded in 1967 after the referendum that year gave the Commonwealth the right to legislate for Aboriginal people, a right previously confined to the states. More than 90 per cent of the Australian electorate then voted in favour of the clause, a result widely celebrated at the time by Aboriginal and non-Aboriginal people alike. However, today’s activists and academics smear it as racist in order to further their own undemocratic agenda.

Yes:

Recognition in the Constitution would protect against the future loss of Australia’s unique indigenous cultures, which are a vital part of our national identity. Recognition will help improve Indigenous health and well being.

No:

Constitutional change can do little to preserve cultures. The gesture would be largely irrelevant to the 80 per cent of Aboriginal people who are now well inte-grated into mainstream Australia, mostly in the suburbs of the major cities and larger regional centres. And it would go completely unnoticed in the emergency departments of hospitals in central and northern Australia where, because of the failed policy of remote communities, Aboriginal victims of Aboriginal violence and sexual abuse are grossly over-represented.

Yes:

A successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution would be an uplifting achievement that unites Australians.

No:

It would divide Australians, not unite us. The intention of Aboriginal activists for the past forty years has been to gain ‘sovereignty’ and self-determination, that is to break-up Australia into separate states or nations, and thus create a black state for each and every group that identifies as Aboriginal. Because of the High Court’s Mabo decision, and the subsequent favourable decisions by the Federal Court’s Native Title Tribunal, the territory defined as native title, now amounts to 50 per cent of the continent, and once the current crop of claims are settled it twill soon amount to more than 60 per cent of the whole continent, leaving the rest of our 24 million people to own just 40 per cent The more radical Aboriginal activists want their own separate nations independent of Australia in every area except for funding, which they expect to continue from what would be left of the nation we know as Australia. Eligibility for membership would be restricted to people of Abo-riginal descent — in other words, each would a state or nation based on ancestry. This would inevitably generate widespread resentment among non-Aboriginal Aus-tralians, who would have to pay for it all. A constitutional amendment to give Aboriginal people privileges unavailable to other Australians would not make our nation complete. It would divide it permanently.


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