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The symbolism isn't bad, but the hypocrisy and cruelty are

By Megan Davis - posted Friday, 19 October 2007

The poor track record of Australia's public institutions on Indigenous issues remains undiminished. It is therefore significant to hear the Prime Minister finally acknowledge the psychological terra nullius that fuels Indigenous detachment.

Symbolic gestures of reconciliation that Indigenous Australians have been advocating for years, such as a new preamble or an apology to the stolen generation, are the kinds of gestures that have been disparaged during the Howard era because public discussion of Indigenous issues was co-opted by ideology. Any suggestion of symbolic reforms sparked derision from the conservative commentariat as "wishy-washy" or not "hard-headed" enough.

But the spectacular failure of Howard's "practical reconciliation", as evidenced by the Northern Territory intervention, has clearly forced a rethink.


Practical and symbolic reconciliation are essentially two sides of the same coin, and most Australians understand the importance of symbolism in nurturing a sense of nationhood and the feeling of inclusion: Anzac, Kokoda, Gallipoli, the wattle on the lapel, the farmer and the drought. Indigenous peoples have not played any formal role in state building, and symbolic gestures such as recognition in a constitutional preamble will deliver some heightened sense of belonging and perhaps engender some uncontested truths about the place of Aboriginal and Torres Strait Islanders in Australian history.

Yet the symbolism of indifference embedded in Australia's polity cannot be neatly arrested by recognition in a preamble, as the indifference is too deeply entrenched. The constitution, Australia's founding document, remains imbued with racist intent and this legacy is clearly reflected in the races power that enables the Federal Government to pass laws to the detriment of any race. The devil is in the detail.

Howard's symbolic gesture entails amending the preamble, which is technically not the preamble to Australia's constitution but the preamble to the Commonwealth of Australia Constitution Act 1900. The preamble has no real legal effect. The Prime Minister stated that the recognition of Indigenous peoples in the preamble should not be muddied by other constitutional niceties. In Howard speak, this means he will not touch the right of his government to legally discriminate against a group of people on the basis of race.

Only eight out of 44 referendums have been successful and the key to those successes was bipartisan support. In contemplating an almost certain successful outcome, because of Labor me-tooism, the fact that Howard did not entertain the possibility of amending or deleting the races power is a cruel joke.

It is cruel indeed to throw crumbs at the lepers of Australian democracy while fully intending to enter the next term armed with the constitutional right that has been used by the Coalition to wind back the few substantive rights Indigenous peoples have won.

Indigenous peoples will not forget that it is Howard who wielded this right, after Wik, to diminish native title rights, while also threatening to hold a race election on the issue. It is the races power that is safeguarding the racially discriminatory legislative regime in the Northern Territory.


In welcoming recognition in the preamble, many Indigenous peoples realise such gestures are merely the prelude to much more difficult conversations.

Howard is not proposing recognition of Indigenous rights because this would be at odds with the Federal Government's recent aggressive repudiation of Indigenous rights at the United Nations. It would also be inconsistent with the legislative winding back of Indigenous rights that has defined the Howard era.

If successful, this would be a small, incremental step towards reconciliation because "unfinished business" between black and white Australia is far from over.

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Article edited by Susan Prior.
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First published in the Sydney Morning Herald on October 15, 2007.

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About the Author

Megan Davis is the Director of the Indigenous Law Centre and Senior Lecturer, Faculty of Law, UNSW.

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Creative Commons LicenseThis work is licensed under a Creative Commons License.

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