Left fails to confront Section 44's racist legacy

November 18, 2017
A protest outside a Recognise meeting in Kirribilli House, Sydney, last year.

When this debacle around Section 44 of the Australian Constitution started becoming apparent, I found myself amused.

The fact that a group of white politicians were falling victim to a section I believed was inherently xenophobic, particularly when some of those same politicians have been integral in fanning xenophobia to win votes, contained a delicious irony.

Yet as the weeks went by and more and more politicians started having their citizenship scrutinised, as an avowed lefty I increasingly found I was out of step with much of the left's reaction. We were not laughing for the same reason.

It seemed enough for many “progressives” that the majority of the people who had fallen by the dual citizenship wayside were Coalition members, with the added bonus of Malcolm Roberts of One Nation. I witnessed statements about how these politicians did not “follow the rules”.

I saw Greens who were similarly afflicted stand down in respect for “the rules”. I began to wonder why what is essentially an issue of racism and discrimination was not considered a priority for those who state they believe in social justice.

Constitutional recognition

I have been a vocal critic of the campaign for constitutional recognition of Aboriginal and Torres Strait Islander peoples. I maintain a hard line that first and foremost, we need to rectify the wrongs and come to agreements in the form of treaties. I believe we need land rights, the return of stolen wages, due compensation for the Stolen Generations and a respect for our self-determination as peoples.

Constitutional recognition was never going to do this. Indeed, as the years dragged on, it became apparent that the only type of recognition the government was interested in was symbolic — confirmed by Prime Minister Malcolm Turnbull's recent rejection of the conservative proposal to have an Indigenous political voice enshrined in the Constitution.

Though ultimately it was the determination of Aboriginal and Torres Strait Islander people to fight for real rights that brought the Recognise campaign down, by the time the government was through with it we may as well have voted Yes to Howard's weak preamble proposition in 1999.

Yet that movement did not start out this way. When the Expert Panel on Constitutional Recognition handed down its report in 2012, it was an extensive document that examined not only a wide variety of community responses to the type of recognition we were interested in, but also the likelihood of whether these would succeed should they go to public referendum vote.

It is maddening that successive governments let this work be whittled down to nothing, because regardless of many Indigenous people's issues with constitutional recognition, the report illustrated that there were racist provisions contained in the Constitution and Aboriginal people supported these being rectified or removed.

A massive opportunity was missed here. Instead of spending millions of dollars on a campaign that the government wanted to fail because they had no intention of recognising Indigenous rights, why did they not instead examine this extensive report for its worth and contemplate various directions?

The responsibility of removing racism from the Constitution lies not with Indigenous people — for the Constitution was written under the false doctrine of terra nullius and as far as the writers were concerned, we simply did not exist — but on a government with a commitment to a non-discriminatory future.

Racist Constitution

Section 25, for example, sets out the right for federal representative seats to be reduced by a proportionate number if a state or states excludes people of certain races from voting. While it has been argued that this is essentially an anti-racism provision, the fact that it still allows states to bar people from voting based on race is inherently racist.

Here's an interesting historical fact: in all states, bar Queensland and Western Australia, Aboriginal men had the assumed right to vote prior to Federation — and indeed, from 1895, Aboriginal women in South Australia could also vote, due to women's suffrage being achieved there.

Then along came the Commonwealth Franchise Act 1902 which, while giving women suffrage, excluded a range of groups such as Indigenous people, Indians, Africans and so forth. Indeed, all those who weren't considered subjects of the British Empire were excluded. This is particularly interesting in the case of Indians, as they actually were subjects but became excluded on the basis of the act excluding “Asians”.

It was therefore mere months after the Constitution was installed — with its Section 44 barring those with a “foreign allegiance” (again intended to bar those who were not British subjects) from holding seats — that the government was banning various non-white groups from voting.

Tie this in with the fact that the White Australia Policy limiting non-white immigration was already in effect and we have a cluster of laws and rules that were born of racism and which are currently playing out in ways never intended.

Race power

The “race power” in the Constitution, Section 51(xxvi), gave the federal government the right to make laws pertaining to people of any race “other than the Aboriginal race in any state, for whom it is deemed necessary to make special laws”, thus leaving Aboriginal people subjected to various state-based atrocities such as missions and unpaid labour. This power was amended in 1967 to instead give the federal government powers to make these laws.

This section has since been used for items such as the introduction of the Northern Territory Intervention. Yet while Aboriginal people have been targeted in specific ways via Section 51(xxvi), it was actually introduced in response to Chinese, Kanaka and other “foreign” groups, as a way of restricting their labour and trying to send them back to their home countries.

The Expert Panel report focused on sections 25 and 51(xxvi) because its focus was constitutional recognition for Aboriginal and Torres Strait Islander people, and these are sections that have had specific impacts upon our lives. The idea that Section 44 could also impact Indigenous rights did not become apparent until a question over Yawuru Senator Patrick Dodson's own eligibility to sit based on having an Irish father started hitting the media.

When the recommendations of the Expert Panel highlighting racism in the Constitution were handed down, that work could have been expanded upon. The Constitution could have been combed for all the sections that hark back to racist mindsets, a combined anti-racism campaign could have been mounted by the government engaging input from multiple marginalised racial groups, and a referendum to remove these legacies from the document could have been held.

It is 2017 and, following the 1967 referendum, the many waves of post-war migration and the contributions to this society made by people from all over the globe, racism and xenophobia should have utterly no place in our premier legal document.

It is troubling that so many on the left are not fighting this battle; they are simply stating that these are “the rules” we must follow and are celebrating the downfall of certain politicians while ignoring these same rules' horrific legacy.

It is troubling that when challenges to Section 44 were mounted, they came from sitting members on the right, mainly because the Coalition power margin was under threat, not from the left on the basis of anti-racism, anti-xenophobia and social justice. I find it particularly troubling due to historical left-wing support of the White Australia Policy on the basis of promoting white Australian workers.

The last immigrant in my family tree came to this country four generations ago. Couple this with the fact that I am also Arrernte and therefore have heritage here stretching back 4000 generations and I find myself a severe minority according to recent Census data.

If Australia does actually consider itself a multicultural society in an increasingly global world, then sections in the Constitution that discriminate against those who hold dual citizenship based on someone's inherited background have no place. Questions of loyalty based on dual citizenship have no place. Nor does racism. So which side is going to take up that challenge?

[This article was first published on Eureka Street. Celeste Liddle is an Arrernte woman living in Melbourne, the National Indigenous Organiser of the NTEU, and a freelance opinion writer and social commentator. She blogs at Rantings of an Aboriginal Feminist.]

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