The proposal for Indigenous constitutional recognition was always going to be complicated. All constitutional changes are. But it's been more complicated because the objective hasn't been uniformly articulated.
To me it's simple. Our constitution created the Australian nation in 1901 by uniting six British colonies. Those colonies were built on the assumption that the Australian continent didn't have established societies before 1788. That assumption was wrong. It's an undisputed fact - people have lived in Australia for thousands of years in established societies with their own languages and systems of law. Our constitution acknowledges the six British colonies. Why not the societies preceding them?
Australia’s constitution allocates powers between the Commonwealth and the States. It doesn't dictate policy, require that governments make good laws or bestow civil rights. It leaves the Australian people to hold governments to account on the laws they make.
However, Australia’s constitution does expressly allow the Commonwealth to make laws on race. This is a legacy of its time. In 1901, the idea that humans could be classified into biologically distinct “races”, based on skin colour, facial features etc, was still popular. Today race theory is discredited pseudoscience.
Indigenous people were excluded from this constitutional "race power" until the 1967 referendum. Today the race power is race neutral, but still archaic and awkward. Consequently, constitutional recognition has become muddied by the idea of race.
Removing the race power is a legitimate option. But history tells us that any attempt to replace it with bans on racial discrimination or a requirement that laws benefit Indigenous people will fail; fuelling a divisive debate along the way.
We've just had another divisive debate in the context of the proposed 18C repeal, a proposal triggered by the sanction of Andrew Bolt for articles about Aboriginal identity. Bolt also opposes constitutional recognition.
Bolt says we should move past race. Yet he writes about Aboriginal identity through a lens of race, talking about skin colour and physical features; whether race is detectable from someone's appearance; and questioning whether people who “look” Swiss, German or Scottish can identify as Aboriginal.
But what exactly does a German, Swiss or Scottish person look like?
A few weeks ago I watched a report on the Scottish independence vote. It opened with a group of black women singing for independence. They're proud Scots and they’re black. Scotland is not a race. It's a nation. As David Cameron correctly said, the independence vote was not about whether Scotland is a nation. It's already a nation and will continue to be so whether it’s independent or not.
The Oxford Dictionary defines a “nation” as “a large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory”. That precisely describes traditional Indigenous societies. Categorising Indigenous people as a “race” made sense to Europeans in the 1700s but it's not how we look at ourselves. I’m not part of an “Aboriginal race”. I’m a member of the Bundjalung nation.
Nations are not the same as sovereign countries. There are dozens of stateless nations. Nations can even be geographically dispersed. Jewish people are united by common descent, history, culture, language and homelands. They are a nation in diaspora.
Some stateless nations campaign for independence like the Scots. Most are content to live within other sovereign borders as citizens of those countries, and also celebrate their traditional nation's culture, heritage, language and identity. Nations can co-exist with - and within - each other without conflict. Formal recognition of stateless peoples already exists in North America, New Zealand and Europe, for example.
Bolt has spoken about his own identity struggle as the Australian born child of Dutch immigrants; of feeling like an outsider and of once considering himself Dutch. Now he regards himself as Australian but prefers to identify as an individual. He wishes there was "No ethnicity. No nationality. No race.” He believes we can "renounce our ethnic identity, because I have done that myself."
That's his choice. But Bolt's circumstances aren’t the same as Indigenous Australians. My Bundjalung ancestors didn’t immigrate to Australia a generation ago. They’ve lived on the Australian continent since time immemorial. Why should I renounce my Bundjalung identity?
But more importantly, The Netherlands will continue as a nation whether Bolt identifies as Australian, Dutch, Dutch-Australian or simply as Andrew Bolt. Dutch history will be studied; Dutch culture and language will continue; Dutch arts will be celebrated. Indeed, all this will happen even if one day the majority of Dutch people have dark skin.
Constitutional recognition isn't about race. Nationhood isn’t about race. It’s about the continuation and evolution of culture through a group of people. There's no other country where Australia's traditional nations will continue and evolve.
Australia has a rich, ancient history. This continent hosts one of the youngest nations of the world and also the oldest nations of the world. All Australians can be proud of this. And I believe most Australians will embrace recognising this in our constitution. It’s that simple.