Last week the ABC broadcast Recognition: Yes or No?, a program following the joint travels of federal Labor MP Linda Burney and conservative commentator Andrew Bolt as they debate whether Indigenous peoples should be “recognised” in Australia’s Constitution.
Viewers are told at the outset that they will be asked to vote in a referendum on constitutional reform. The program claims this referendum “could unite or divide our nation” and asks: “How will you vote?”
Whose right to speak?
The program assumes that a continual butting of heads between two people who are strongly opposed on the question at hand takes us somewhere on the road to understanding. But this format is problematic, as is the choice of voices.
Burney is continually challenged to respond with reason to the deeply held views of demagogues. When Bolt brings Burney to meet Cory Bernardi, the Liberal Senator rejects the idea of constitutional recognition of Indigenous peoples because: “Our Constitution has given us everything in terms of a legal framework and has provided opportunity for every Australian.
Burney must then remind an abashed Bernardi that the Constitution had to be reformed in 1967. Until then, the Commonwealth had no power to make laws in relation to Indigenous peoples or count them in the census.
The program privileges Bolt’s voice in the recognition debate, even though — or perhaps because – he is known for racially discriminatory commentary against Indigenous people. Bolt rejects the value of Indigenous identity and also claims to be Indigenous himself — because he was born in Australia.
The ABC need not have looked far for alternative voices. The producers might even have centralised the voices of Indigenous people.
Some well-known Indigenous speakers are consulted briefly — for example, then-social justice commissioner Mick Gooda, who believes constitutional recognition can give Indigenous people a sense they are valued as a part of Australia.
Journalist Stan Grant also features in an odd exchange during which Bolt says that we need “less us and them”, and Grant says that is what “we” want too.
Australia’s Constitution is reflective of a legal system that has dispossessed and discriminated against the First Peoples since colonisation. I am drawn to Gooda’s sentiment that recognition would acknowledge the truth about Australia’s foundations.
But who am I — or any non-Indigenous Australian — to say what Indigenous people want or need?
The ABC has missed a rare opportunity to deeply engage with the diversity of views among Indigenous Australians about whether and how they should be “recognised” — or whether recognition is the most important thing.
What are we being asked, anyway?
The recurring theme of Bolt’s contributions to the program is a rejection of group identity and an emphasis on the value of the individual.
Bolt asserts that recognition of First Peoples effectively divides Australia by race. Instead: “We must find a common, overarching identity or set of values and give people an equal sense that this is their country. There is [sic] no first Australians, and second Australians and third and fourth; it is ours and everyone can feel a passionate bond with this country equal in depth of emotion as that that you [Burney] feel.”
Bolt’s insistence that constitutional recognition will divide Australia along racial lines is rejected by several Indigenous and non-Indigenous contributors to the program. A particularly strong critique emerges in the scenes reflecting on how New Zealand has addressed its history and acknowledged the culture, identity and language of Maori people.
But, throughout the program, Bolt’s view persists as a challenge to the value of acknowledging the distinct status, rights, culture, identity and lived experiences of Indigenous peoples in Australia.
A visit to Yirrkala in Arnhem Land sees Bolt challenging elders to explain what economic prospects their children can hope for if the community insists on keeping “your culture going”.
This outcome could have been avoided if the producers had taken greater care to explore the intricacies of the debate. The program gives insufficient time to the range of possibilities for a referendum question.
It also contains some assertions that are up for debate – for example, that the race power in the Constitution is the legal foundation for native title and that native title is “also known as land rights”.
Most crucially, the program suffers from the weak premise that Burney and Bolt are debating the main game. The program makes cursory mention that “some Aboriginal leaders” are calling for constitutional recognition alongside treaty, while others demand treaty instead.
The essential question of where treaty fits in this debate is addressed by reference to Bolt’s claim that a treaty will create separate Aboriginal nations. History and comparable situations in other countries tell us how unlikely this is.
The program provides no meaningful insight for viewers as to what either constitutional recognition or treaty might contain or deliver. Its design fails to reveal what law professor Megan Davis has called the “unwavering aspiration” of Indigenous peoples in Australia for: “a settlement between Aboriginal polities and the state”.
Elsewhere, the ABC has acknowledged that some Aboriginal people oppose constitutional recognition. For example, Nayuka Gorrie rejects the idea of asking white Australia for recognition within the colonial system. Gorrie calls instead for treaty to recognise ongoing Indigenous sovereignty.
Journalist Amy McQuire has criticised the recognition debate as an “incredibly white, government-driven, media-manipulated process that has alienated a great section of our community.
McQuire has previously argued: “The belief that acknowledgement as ‘First Australians’ in the constitution is ‘sufficient’ to deal with the trauma that stretches back 226 years is as offensive as the term itself.
“Aboriginal people are not the ‘First Australians’ — we are members of nations that have never ceded our sovereignty, despite government doublespeak offering the concession we were here ‘first’, while disassociating us with our individual nations.”
Indigenous feminist Celeste Liddle has likewise noted the “anti” constitutional recognition position has been dominated by conservative white men. Oppositional views among Indigenous communities have not received funding, unlike the government-backed Recognise campaign.
Yet evidence exists to undermine the claim that the vast majority of Indigenous people would support the as-yet-undefined recognition referendum.
Maybe this debate is too hard for us
But if “recognition” is to be subject to actual debate, then the potential of treaty must be engaged with. Outright rejection reflects a narrow and colonial understanding of “nationhood”.
It also ignores historical fact. Australia was not settled according to international law, even as it was understood at the time of colonisation. The British sought to impose an expanded doctrine of terra nullius, which the High Court later rejected. Indigenous sovereignty was never ceded.
Perhaps the current quality of Australian public discourse is too poor to manage complex and important debates about rights and identity.
As the recognition debate continues, voters also face the prospect of a plebiscite to gauge opinion on same-sex marriage. In both cases, the people whose lived experiences and rights claims are at the heart of the debates struggle to have their voices heard.
[Amy Maguire is a Senior Lecturer in International Law at the University of Newcastle. This article was originally published on The Conversation.]