THE REWARD FOR PUBLIC LIFE IS PUBLIC PROGRESS1:
AN APPRECIATION OF THE PUBLIC LIFE OF
THE HON. E.G. WHITLAM AC QC
PRIME MINISTER 1972-1975
2013 WHITLAM ORATION
University of Western Sydney
13 November 2013
In his 97th year, in this third oration in honour of Australia’s 21st prime minister, I
use the appellation ‘old man’ with all the reverence and love of its meaning in the
ancient culture of my people. An acute consciousness of the honour bestowed by
the governors of the Whitlam Institute to one so richly undeserving, is leavened
by unalloyed gratitude for the chance to salute this old man in the twilight of his
extraordinary life. The alacrity with which this invitation is seized belies
somewhat the humility which an outsider should properly feel when afforded
such a rare and august privilege.
I say ‘outsider’ in the sense of the Australian Labor Party, but if I was born
estranged from the nation’s citizenship, into a humble family of a marginal people
striving in the teeth of poverty and discrimination – it is assuredly no longer the
case. This because of the equalities of opportunities afforded by the Whitlam
program which successive governments built upon, and even where predilections
were otherwise, their institutionalisation made their reversal difficult. The truth
is I, and numbers of my generation, are today bourgeois, albeit with varying
propensities to decadence.
I come to reflect on this old man’s legacy with no partisan brief. I have no family
or community tradition in any of Australia’s political parties: raised next to the
1 Paul Keating: “Public life is about public progress; that’s the only reward. Everything else is
puffery”. http://www.investordaily.com.au/28188-on-the-record-with-paul-keating. Accessed 11
2 Chairman, Cape York Partnership, Cairns, Queensland.
woodheap of the nation’s democracy, my family never developed a passion or
allegiance for any party. In my own political philosophy the opportunity
redistribution principles of the social democrats naturally resonated with me, the
social conservatism and traditionalism of the conservatives was consonant with
my mission and cultural upbringing, and I came to understand the power of the
liberal principles of personal agency and self-interest as animators of individual
and social progress.3
My reflection amounts to an immense gratitude for the public service of the
Honourable Edward Gough Whitlam AC, QC, Prime Minister of Australia, 5
December 1972 to 11 November 1975. Let me commence with a personal
perspective of indigenous policy under the Whitlam government.
1 Whitlam and Indigenous progress
I was born in Cooktown two years before the referendum that gave my people
citizenship, raised in the Lutheran mission of Hope Vale. In 1996 I took this old
man on a tour there and he recalled his wartime service with the RAAF in
Cooktown. We spoke about the history of the mission and my youth under the
government of his nemesis: Queensland Premier Joh Bjelke-Petersen.
My home was an Aboriginal Reserve under a succession of Queensland laws
commencing in 1897. These laws were notoriously discriminatory and the
bureaucratic apparatus controlling the reserves maintained vigil over the smallest
details concerning its charges. Superintendents held vast powers and a cold and
capricious bureaucracy presided over this system for most of the twentieth
In June 1975 the Whitlam government enacted the Aboriginal and Torres Strait
Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).
The law put to purpose the power conferred upon the Commonwealth
Parliament by the 1967 referendum: finally outlawing the discrimination my
3 I outlined my own philosophical search for the ‘radical centre’ between conservatism, liberalism
and socialism in my 2010 John Button Oration.
4 For an account of the history of Queensland’s Aboriginal Reserves see Rosalind Kidd, The Way
We Civilise, UQP, 1997
father and his father lived under since my grandfather was removed to the
mission as a boy, and to which I was subject the first 10 years of my youth.
Whereas my forebears – as had generations of men and women from across
Queensland’s reserves – worked as drovers and stock-workers, agricultural
labourers and domestic help, and whatever unequal wages they received were
managed by the Department of Native Affairs: the 1975 law now deprived the
Queensland Government of the power to manage the property of Aboriginal
Reserve residents without consent. Amongst the files of a great grandmother
from Chillagoe in the hinterland of north Queensland, whose wages were
managed by the local police protector – protectors were notorious for stealing
from the wages they managed – we found a file-note from a protector informing
his successor to be careful dealing with her money, because though she was bushborn,
she knew how to count!
A late mentor and friend told me when he returned as a young man from his first
job outside the mission in the 1960s, he bought his first motorcar with his savings
and drove proudly back home to visit his family. No one owned cars in the
mission in that time. The next day the superintendent ordered him to
immediately remove his car from the reserve as he had no permission to possess a
vehicle. I asked what he did. His precise words were that he obeyed “without
bend or bow”. There was no questioning in those days.
Powers regulating residency on reserves without a permit; the power of reserve
managers to enter private premises without the consent of the householder; legal
representation and appeal from court decisions; the power of reserve managers to
arbitrarily direct people to work; and the terms and conditions of employment –
were now required to treat Aboriginal Queenslanders on the same footing as
other Queenslanders, and indeed other Australians.
At the level of legal policy at least, we were at last free from those discriminations
that humiliated and degraded our people. Whilst discrimination would continue
in practice and the last vestiges of the old institutional controls of Queensland’s
reserve administration lasted into the next decade (I was a young elected
councilor when we severed the Lutheran Church’s role in the secular
administration of our community in 1989) the Whitlam legislation meant
The companion to the Queensland discriminatory laws enactment, which would
form the architecture of indigenous human rights akin to the Civil Rights Act 1965
in the United States, was the Racial Discrimination Act 1975, enacted that same
It was in Queensland, under Bjelke-Petersen, that the importance of the Racial
Discrimination Act became clear. In 1976 a Wik man from the Wynchanam clan
of Aurukun on western Cape York Peninsula, John Koowarta, was supported by
the Aboriginal Land Fund Commission to purchase the Archer Bend Pastoral
Lease from its white owner. Bjelke-Petersen directed the lands minister to refuse
the transfer, citing a policy of the Queensland Government preventing the sale of
Crown leaseholds to Aboriginal groups. Koowarta complained to the Human
Rights and Equal Opportunity Commission that the Queensland Government’s
action was unlawful under the Racial Discrimination Act. The complaint was
upheld. However the Queensland Government challenged the constitutional
validity of the Racial Discrimination Act before the High Court.
The High Court’s decision in Koowarta v Bjelke-Petersen5 came down in 1982, and
by a 4-3 majority the Racial Discrimination Act was upheld as a valid exercise of the
external affairs power of the Commonwealth. However for John Koowarta and
his people the victory was hollow because in an act of spite Bjelke-Petersen
converted the pastoral lease into the Archer Bend National Park. The irony of
one of Queensland’s all-time champion ball and chain land-clearers using an
environmental tenure to deny traditional land rights, spoke volumes.
Like every law student I read this landmark case at Sydney University, returning
north to work with my elders at the Cape York Land Council. One was old man
John Koowarta. In 1991 I campaigned with him for the new state Labor
government of Wayne Goss to enact land rights legislation to give justice to
Koowarta’s people. The Goss scheme which enabled land claims over national
parks6 failed to do justice.
Old man Koowarta died a broken man. The winner of a landmark High Court
precedent, but the victim of an appalling discrimination.
5 (1982) 153 CLR 168
Aboriginal Land Act 1991 (Qld)
In 2010 Premier Anna Bligh made provision for 75,000 hectares, a portion of the
National Park created by Bjelke-Petersen, to be returned under Aboriginal
Freehold title. A measure of justice was finally restored to Koowarta’s people.
The crucial importance of the Racial Discrimination Act to land rights would again
become apparent, again in Queensland and again involving Joh Bjelke-Petersen.
In 1982 a group of Murray Islanders, led by an expatriate activist-comegroundsman
working at James Cook University in Townsville named Eddie
Mabo, commenced proceedings in the High Court claiming title under the
common law to their traditional homelands in the Torres Strait. In 1985 Bjelke-
Petersen’s government sought to kill the Murray Islanders’ case by enacting an
extraordinary law called the Queensland Coast Islands Declaratory Act.
Extraordinary because it said that if native title existed in the islands of the
Torres Strait as claimed by Mabo, then this Act effected a retrospective
extinguishment of any such title.
If the Queensland Act was effective, the Mabo case would have died there and
then. The Murray Islanders sought a declaration from the High Court that the
Queensland law was unlawful under the Racial Discrimination Act. In December
1988 the High Court ruled 4-3 the Queensland law was invalid because it denied
the Torres Strait Islanders their human right to own and inherit property, in a
racially discriminatory way. This case was called Mabo No. 17.
Consider it: Bjelke-Petersen’s position was that Mabo’s people should not enjoy
the same human right enjoyed by other Queenslanders: the right to own and
inherit property. He was happy for mainstream Queenslanders to own and
inherit property, in fact one would think he would have defended their rights to
the hilt. But he wanted to deny these same rights to Torres Strait Islanders.
There was no political or media uproar against Bjelke-Petersen’s law. There was
no public condemnation of the state’s manoeuvre. There was no redress
anywhere in the democratic forums or procedures of the state or the nation.
If there were no Racial Discrimination Act, that would have been the end of it.
Land rights would have been dead. There would never have been Mabo No.28 in
1992. There would have been no Native Title Act 1993 (Cth). There may never
have been native title, especially if other states around Australia followed Bjelke-
7 Mabo v Queensland (No.1) (1988) 166 CLR 186 8 Mabo v Queensland (No.2) (1992) 175 CLR 1
Petersen’s lead in enacting the Coast Islands Declaratory Act. This is certainly what
Premier Richard Court’s government did when they passed the Land (Titles and
Traditional Usages) Act 1993 (WA). This law aimed to extinguish native title
throughout the entire of Western Australia and replace it with certain
entitlements set out in this state Act. In The Native Title Act Case9 the High
Court ruled the Land Titles and Traditional Usages Act invalid and native title
survived in Western Australia.
I traverse the history of land rights laws to show that without this old man the
land and human rights of our people would never have seen the light of day. The
importance of Mabo to the history of Australia would have been lost without the
2 What did this Roman ever do for us anyway?
This brief survey of land rights in Queensland does not include the more wellknown
achievements of the Whitlam government: the repossession of the
Gurindji of Wave Hill when the prime minister said:
“Vincent Lingiari, I solemnly hand to you these deeds as proof, in
Australian law, that these lands belong to the Gurindji people, and I put
into your hands this piece of earth itself as a sign that we restore them to
you and your children forever.”
Neither does it anticipate the consequences of the Woodward Royal
Commission established to inquire into the recognition of traditional land rights
in the Northern Territory. It was this old man’s initiative that led to the Fraser
Government enacting the Aboriginal Land Rights (Northern Territory) Act 1976
(Cth), legislation that would see more than half of the territory returned to its
Of course recalling the Whitlam government’s legacy has been for 38 years since
the dismissal, a fraught and partisan business. Assessments of those three highly
charged years and their aftermath, by protagonists and later commentators alike,
divide between the nostalgia and fierce pride of the faithful, and the considerable
opinion that the political and economic management record of the Whitlam
years represented the nadir of national government in Australia.
9 Western Australia v The Commonwealth (1995) 128 ALR 1
Lindsay Tanner observed in a 2011 commentary:
The [Whitlam] government’s record has been clouded by the intense
demonisation that followed in the wake of its dismissal. Conscious of the
enormity of the constitutional atrocity they had engineered, conservatives
went to extraordinary lengths to sully the Whitlam government’s legacy, as
if to justify their misuse of the Senate and the dismissal with a plea of selfdefence.
Let me venture a perspective.
The Whitlam government is the textbook case of reform trumping management.
There are four permutations of government: government that fails reform and
merely manages, government that balances reform and management, government
that reforms and fails management, and government that fails in both. Whitlam’s
was a reform government for whom political and economic management was
secondary. In less than three years an astonishing reform agenda leapt off the
policy platform and into legislation and the machinery and programs of
government. The country would change forever. The modern, cosmopolitan
Australia finally emerged like a Technicolor butterfly from its long-dormant
Thirty-eight years later we are like John Cleese, Eric Idle and Michael Palin’s
Jewish insurgents ranting against the despotic rule of Rome, defiantly demanding
“and what did the Romans ever do for us anyway?”
“Apart from Medibank?”
“and the Trade Practices Act 1974?”
“cutting tariff protections?”
“and no-fault divorce and the Family Law Act 1975?”
“the Australia Council?”
“the Federal Court?”
“the Order of Australia?”
“federal legal aid?”
“the Racial Discrimination Act 1975?”
“needs-based schools funding?”
Lindsay Tanner, The Monthly, June 2011
“the recognition of China?”
“the Law Reform Commission?”
“the abolition of conscription?”
“student financial assistance?”
“FM radio and the Heritage Commission?”
“non-discriminatory immigration rules?”
“community health clinics?”
“Aboriginal land rights?”
“paid maternity leave for public servants?”
“lowering the minimum voting age to 18 years?”
“fair electoral boundaries and Senate representation for the Territories?”
“Apart from all of this, what did this Roman ever do for us?”
And the prime minister with that classical Roman mien, one who would have
been as naturally garbed in a toga as a safari suit, stands imperiously with
twinkling eyes and that slight self-mocking smile playing around his mouth – in
turn infuriating his enemies and delighting his followers.
There is no need for nostalgia and yearning for what might have been. The
achievements of this old man are present in the institutions we today take for
granted, and played no small part in the progress of modern Australia.
There is no need to regret three years was too short. Was any more time needed?
The breadth and depth of the reforms secured in that short and tumultuous
period were unprecedented and will likely never again be repeated. The Devil
might care attitude to management as opposed to reform imperatives is unlikely
to be seen again by future governments whose priorities are to retain power
rather than reform. We saw this with that succession of provincial Labor
governments these past twenty years.
3 Promoting equality
Let me look to the future. The Whitlam program as laid out in the 1972 election
platform, consisted three objectives:
to promote equality;
to involve the people of Australia in the decision-making processes of our
to liberate the talents and uplift the horizons of the Australian people
This program is as fresh as it was when first conceived. It could scarcely be
better articulated today. Who would not say the vitality of our democracy is a
proper mission of government, and should not be renewed and invigorated? Who
can say that liberating the talents and uplifting the horizons of Australians is not
a worthy charter for national leadership?
It remains to grapple with the idea of promoting equality.
My chances in this nation were a result of the Whitlam program. My
grandparents and parents could never have imagined the doors that opened to me
which were closed to them. I share this consciousness with millions of my fellow
Australians whose experiences speak in some way or another to the great power
of distributed opportunity.
I don’t know why someone with this old man’s middle – perhaps more accurately,
upper middle – class background, could carry such a burning conviction that the
barriers of class and race of the Australia of his upbringing and maturation,
should be torn down and replaced with the unapologetic principle of equality. I
can scarcely point to any white Australian political leader of his vintage and of
generations following of whom it could be said without shadow of doubt he
harboured not a bone of racial, ethnic or gender prejudice in his body. This was
more than urbane liberalism disguising human equivocation and private failings.
It was a modernity that was so before its time as to be utterly anachronistic.
For people like me who would have no chance to attend university if left to the
means available to our families, we could not be more indebted to this old man’s
foresight and moral vision for universal opportunity. It is my observation that
those whose families could never have given them such opportunity, possess a
desperately acute understanding of how precious it was and is. I can understand
the special desperation of former Prime Minister Julia Gillard in respect of
education. It was all she had and it was her main chance. What the Whitlam
program gave her was something her family – for all of the things they could, a
loving home, every encouragement and so on – could never give her: the chance
to attend university. My family was the same. Except my parents could scarcely
understand what university was. They gave me love, my father learned Francis
Bacon’s injunction from somewhere and drilled me incessantly that “reading
makes a full man”, my mother gave me vegemite damper and tea and sent me off
to school every day – but it fell to society through the national government to
give me the chance to attend university. I well understand Gillard’s passion in
relation to educational opportunity. What I don’t understand is how it was that
the old man in whose honour I speak tonight had the vision and determination
even though he himself came from a relatively advantaged family background.
His was not the usual bourgeois temper. Those of us who would rise up in the
world of opportunity thanks to the educational doorways opened by the Whitlam
government, would soon lose our understanding of how it was that we prospered.
It is with this university-educated class that I have developed some fundamental
differences in respect of how the project for equality might be understood and
prosecuted. It is fair to say that some of my policy convictions around tackling
social disadvantage have been at odds with much progressive thinking.
These debates cannot be canvassed at proper length here tonight, but I might at
least sketch an outline. I have a problem with people from my class who have
obsessed too much about the politics of identity to the exclusion of the politics
of material and economic wellbeing. I have a problem with people from my class
whose relativism actually disguises a soft bigotry of low expectations, and double
standards about what constitutes progress. I have a problem with people whose
sole concern with the structures of oppression counsels the disadvantaged not to
be agents of their own progress notwithstanding that oppression. The truth is
that personal agency and structural reform must be complementary.
I advocate land rights and welfare reform. I advocate cultural determination and
economic development. And I resist progressives who will not apply to the
disadvantaged the same standards they apply to themselves. The advantaged are
advantaged because they pursue their self-interest. Yes, even progressive people
are advantaged because the liberal engine of self-interest burns within them as
much as it does their cultural opponents on the right. I have a serious problem
when progressive people seek to deny that individual and social progress of the
disadvantaged is also about self-interest. Self-interest for too many progressives is
anathema to social justice, when in fact it is the very engine of the justice that is
Of course liberal self-interest must be met with opportunity. And it behoves the
wider society through its government to ensure that everyone has chance and
opportunity. This is where the policy convictions of Prime Minister Whitlam in
securing and spreading opportunity for all, have been so germane to the uplift of
many millions of Australians.
Our thinking in Cape York includes another insight. In an era where passive
welfare has had such a corrosive effect we have come to understand that the
building of capabilities within disadvantaged families and individuals, requires not
just opportunity, but personal responsibility. Our equation is: Opportunity plus
Responsibility equals Capability.
The post-Whitlam project for equality for the most disadvantaged must abandon
much of the accumulated progressive theology on how the poor need not always
be with us.
Constitutional recognition of Indigenous Australians
I now want to finally turn to the question of constitutional recognition of
Constitutional recognition of Indigenous peoples has been on the agenda for a
long time. Now, momentum for change is coming to a head. In January 2012 the
Expert Panel delivered its recommendations to Prime Minister Gillard.11 A public
education campaign has been mounted.12 Lawyers are workshopping possible
words and amendments. Politicians are deliberating on changes.
To win a referendum, a majority of voters in a majority of states need to vote
yes.13 For that to happen, bipartisan support for the proposal must be achieved.14
If we expect Australians to vote yes, the general public needs to feel the change is
necessary, and understand the problem we are trying to fix. What is wrong with
our Constitution the way it is? Why does it need to change?
11 Expert Panel on the Constitutional Recognition of Indigenous Peoples, Final Report (2012)
‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’,
12 See http://www.recognise.org.au
13 Constitution of Australia, s 128.
14 See discussion on the importance of bipartisan support in George Williams ‘Recognising
Indigenous peoples in the Australian Constitution: what the Constitution should say and how the
referendum can be won’ (2011) 5(1) AIATSIS Native Title Issues Paper: land, rights, laws, 11-12.
For the most part, our Constitution is fine. It has set up the legal framework for a
stable, prosperous democracy in Australia. It is – mostly – written in neutral
democratic language. It contains no gender bias. It makes no mention of
preferred sexuality. It contains no religious bias.15 It is primarily a fair and just
document, and creates a fair and just democratic system. Except in two respects.
There are two problems in our Constitution. The first is the non-recognition of
Indigenous peoples. The second is racial discrimination: our Constitution still
contains provisions which allow governments to discriminate on the basis of race.
Prior to the 1967 referendum, Indigenous peoples were explicitly excluded from
the Constitution. Section 127 prevented Indigenous people from being counted in
the Census. Indigenous people were also excluded from the scope of s 51(xxvi),
the Race Power. The 1967 referendum reversed this exclusion by deleting s 127
and deleting the exclusion in s 51(xxvi).
Ironically, however, the Constitution now makes no mention of Indigenous
peoples whatsoever. As a founding, historical document, our Constitution is
inadequate. Mabo overturned the doctrine of terra nullius in Australian domestic
law. But our Constitution fails to recognize that this land was not empty when
the British arrived. There is no mention of the Indigenous contribution to
Australia’s heritage and history.16
The second problem is that the Constitution contains racially discriminatory
provisions which enable governments to treat Australian citizens differently on
the basis of race. Section 25 contemplates barring races from voting. S 51(xxvi)
gives the Commonwealth the power to pass race-based laws – whether positive or
This allowance and promotion of racial discrimination is at odds with
fundamental tenets of democracy: individual equality before the law, the rule of
law (in that the same rules should apply to each individual regardless of colour or
15 In fact s 116 prohibits the government from imposing a particular religion.
16 See Shireen Morris, ‘Indigenous constitutional recognition, non-discrimination and equality
before the law: why reform is necessary’, (2011) 26(7) Indigenous Law Bulletin 7.
17 S 51(xxvi) gives the Commonwealth the power to pass laws with respect to “the people of any
race for whom it is deemed necessary to make special laws”. In Katinyeri v The Commonwealth
(1998) 198 CLR 337, it was held that this power can probably be used to pass laws for the benefit of
any race, or laws to the detriment of any race.
ethnicity), and the idea that each person’s vote should be equal. The racial
discrimination in our Constitution is an undemocratic error. On the issue of race,
our founding fathers erred.
Their error was based on outdated factual and moral beliefs, now known to be
incorrect. Racial categorizations between human beings, we now know, have no
scientific basis.18 Race should no longer, therefore, have any legal or policy
application. We now understand that there is only one race: the human race.
Most would now agree that treating citizens differently on the basis of race is
unfair. This is why removal of racial discrimination from the Constitution has
strong public support.19
The race-based approach has also been unsuccessful in addressing the problems
we face in Indigenous affairs. This practical failure has had its roots in the
philosophical understandings that underpin the race-based approach. Race is a
colonial concept. Inherent in the idea of race is the notion that some races are
superior and some are inferior. The incorrect notion that Indigenous people
belong to an inferior or incapable race has arguably had a poisonous effect on
Indigenous policy, law and, consequently, Indigenous people.
While in the past there was much adverse discrimination against Indigenous
people on the basis of race, now there is positive discrimination – well
intentioned – but often with adverse results. Cape York Institute’s work in
welfare reform has shown us this all too clearly. The race-based approach has
perpetuated low expectations and undermined personal responsibility.20
Consequently, as many Indigenous leaders have argued, the law and public policy
18 See the Human Genome Project
21/3/20123]: “DNA studies do not indicate that separate classifiable subspecies (races) exist within
modern humans. While different genes for physical traits such as skin and hair color can be
identified between individuals, no consistent patterns of genes across the human genome exist to
distinguish one race from another. There also is no genetic basis for divisions of human ethnicity.”
See also Sarah Pritchard, ‘The race power in Section 51(xxvi) of the Constitution’ (2011) 15(2)
Australian Indigenous LawReview 50-51.
19 Patricia Karvelas, ‘Most people want racial discrimination removed from the Constitution’, The
Australian, 11 November 2011; Expert Panel on the Constitutional Recognition of Indigenous
Peoples, Final Report (2012) ‘Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution’, 82-91, 157.
20 See Marcia Langton, ‘Indigenous exceptionalism and the constitutional race power’, Melbourne
Writers’ Festival, BMW Edge Theatre, Melbourne, 26 August 2012.
often fails to hold Indigenous Australians to the same responsibilities and
expectations as other Australians.21 This attitude does Indigenous people a great
We must unequivocally reject the idea that Indigenous people are innately or
biologically disadvantaged. Indigenous people are not an inferior race. Yes,
Indigenous people are for the most part socially and economically disadvantaged
due to past discrimination, dispossession and other contemporary factors. And
yes, we should do everything we can to assist disadvantaged people, black or
white. But we should do so on the basis of individual need – not race.22 A person
is not automatically disadvantaged just because he or she is Indigenous. A person
should be rewarded on their merits, and assisted in their needs. Race, and
Indigeneity, should be irrelevant to matters of public welfare and government
We need to move from Indigenous non-recognition to recognition. And we need
to move from a position of racial discrimination in law and public policy, to one
of individual equality before the law.
Reform for recognition means symbolic constitutional recognition of prior and
continuing Indigenous occupation of this land, and recognition that Indigenous
cultures, languages and heritage are Australia’s cultures, languages and heritage –
an important part of our national identity. This is simply a historical truth that
should be stated in our founding document. Prime Minister Tony Abbott once
said that “every Australian needs to feel some kind of mystical bond and union
with every other Australian… to build a nation.”23 Arguably that ‘mystical bond’ is
our shared Indigenous heritage, that most ancient part of our national story that
has for too long been denied.
Our British inheritance is recognised. It has been embodied in the Constitution
since 1901: through the English language in which it is written, through the
structures of democratic government it sets in place, inherited from the English
system of law, and by instating the British monarchy as our Head of State.
21 See Noel Pearson, ‘Our right to take responsibility’, Up from the mission – selected writings (Black
Inc, 2011); Noel Pearson, “White guilt, victimhood and the quest for a radical centre”, (2007)16
22 See Nicholas Perpitch, ‘Link welfare to need, not race: Langton’, The Australian, 27 August
23 David Marr, ‘The Making of Tony Abbott’ (2012) 47 Quarterly Essay.
Australia’s Indigenous heritage should rightly sit alongside these fundamental
British traditions and institutions. It is, after all, our Indigenous heritage, that
gives us that which is unique in the world.
Reform for equality before the law means the racially discriminatory s 25 should
be removed. The Race Power should also be removed and replaced with a new
power allowing governments to pass necessary laws specific to Indigenous affairs,
such as Native Title and Indigenous heritage laws. But the new Indigenous affairs
power should not be used for matters of public welfare or government socioeconomic
assistance. These matters should be addressed not on the basis of
Indigeneity, but on the basis of individual and community need. This distinction
should be made clear in the drafting.
In addition to removing the two racially discriminatory provisions, Australia
should adopt a new constitutional provision prohibiting racial discrimination in
laws and policies and ensuring equality before the law with respect to race,
ethnicity and colour. This is necessary to overturn the racially discriminatory
precedent that has built up since 1901, through legislation, policies and case law.
The Race Power and s 25 established the wrong principle in our Constitution. A
new, correct principle needs to be set in place. Simple removal of discriminatory
provisions is insufficient.
Those on the left have long argued that we should stop the adverse discrimination
against Indigenous people. Those on the right often argue we should stop the
perceived preferential treatment of Indigenous people. The balanced ‘radical
centre’ position,24 and arguably the fair and correct position in a just democracy,
is to eliminate both adverse and preferential treatment on racial grounds.
The most common objection to the propositions I have made for constitutional
reform on the basis of Indigenous recognition and equality before the law, is that
there is a contradiction between the two principles, or that they are separate and
should be dealt with separately. But this in my view is incorrect.
The racial discrimination allowed by our Constitution is inextricably linked to
the Indigenous history we want recognised. So extreme was the discrimination
against Indigenous people, it initially even denied that we existed. This is what
24 See Noel Pearson, ‘Hunt for the radical centre’, The Australian, 21 April 2007.
Indigenous recognition is all about – overturning the fallacies of non-existence
and racial inequality.
There is no contradiction in saying we recognise the importance of the nation’s
unique Indigenous heritage and history, while at the same time confirming that
we are all equal on the basis of our shared and equal Australian citizenship. The
two propositions are complementary. The one entails the other. What’s more,
both propositions are politically necessary.
It is the confirmation that all Australians are equal before the law that legitimises
and makes acceptable the symbolic recognition of Indigenous history and
heritage. It confirms we are not creating a separate category of special treatment
or collapsing into cultural relativism. It confirms that the same rules should apply
to all Australians.
Likewise, it is the symbolic recognition of Indigenous heritage, languages and
cultures, that confirms that the ‘one land, one law’ principle need not dissolve
into mere assimilation and cultural loss. Equality before the law needs to go hand
in hand with a renewed appreciation of the nation’s rich Indigenous traditions
that in our national psyche should carry as much pride as our British traditions
This land was not terra nullius when the British ships arrived.
But recognition should go with equality. This is the yin and the yang. The
amendment proposition needs to have this balance.
Indigenous recognition and equality before the law are correct principles for a
fairer, more reconciled nation. We first need to agree on this. Then, the
challenge will be for the lawyers and drafters to express these principles, carefully
and precisely, in the right constitutional amendments.
Let me say finally to Mr Tony Whitlam who is here this evening on behalf of the
Whitlam family: please pass on to the old man my warmest affection – nay, love –
and convey to him, notwithstanding that my words here tonight could not do his
public service proper justice, some sense of my belief that he is Australia’s
greatest white elder and friend without peer of Indigenous Australians.