Noel Pearson’s proposal for recognition vindicated by history

Pearson plan vindicated by history

Greg Sheridan has asserted in The Australian (Opinion, June 4) that Noel Pearson’s proposal for a consultative body is a terrible idea that strikes against basic liberal principles. He says, “I want our government to have no business distinguishing between Australians.” He is concerned that people will accuse him of being a racist for defending liberal principles.

My concern is not that Sheridan is a racist but that he does not seem to think the law should accommodate special relationships.

My grandfather served in World War II. As a consequence, he was entitled to a range of healthcare services 50 years later: services that would not have been available to other elderly people or invalids. The government distinguished between two groups of elderly and invalid Australians on the basis that one group stood in a special relationship to the state on account of their wartime service.

Distinguishing between Australians in this way might offend against Sheridan’s liberal principles. But it is the business of our government to do so because Australian history creates a special relationship between war veterans and the government. So liberal principles have to be balanced with the conservative’s pragmatism and acknowledgment of historical circumstances. Strict liberalism must be reconciled with the need to accommodate special relationships.

The law has always appreciated the importance of special relationships. If a person dies without a will, the law requires that the deceased’s property pass to their closest family members rather than to the state.

This may not be “fair” in certain circumstances, for instance if the next of kin took no interest in the deceased. Certainly it does nothing to promote basic notions of equality for some undeserving people to inherit vast assets that could otherwise be used more equitably by the state. But the law has always understood the significance of the special relationship between family members and respects this as a social good that needs to be balanced with liberal principles.

Sheridan draws our attention to the fact the Catholic Church imputed collective guilt to the Jews for killing Jesus, and observes that the church then felt obliged to denounce this belief. He seems to think the problem stemmed from the way the church had persisted in recognising the collective identity of the Jews that endured across time.

No people have been more determined than the Jews to preserve their collective identity for millennia, and no people are more acutely aware of the threat liberal ideology, if applied strictly without the tempering of the conservative’s respect for heritage and tradition, poses for assimilation.

As long as the Jewish people continue to exist, and as long as the Catholic Church continues to exist, the Jews will always stand in a special relationship to the church because of the history of the Jewish people and the early church. The Jews are not simply another group of non-Christians with which the church interacts. In recent years, the church has tried to improve this special relationship. But it has no business denying the special relationship.

The Commonwealth of Australia is the federation of six ­British crown colonies. Its Constitution acknowledges the special historical relationships that exist between the former colonies and the federal parliament: it affords each state an equal voice in the Senate, regardless of great variations in population.

Our institutional arrangements reflect the history and circumstances of our nation.

But the federal compact was also established on a continent that had indigenous populations predating these colonies by millennia. As long as the Aborigines exist, and as long as the Commonwealth of Australia exists, the Aborigines will always stand in a special relationship to the commonwealth.

Aborigines are not simply another special interest group with which the government must deal. The special relationship is based on the history of the Aborigines in Australia before the establishment of the crown colonies, and the way those colonies were established.

This is evidenced by the fact there are native title rights arising out of this history, and the fact the commonwealth requires a special power to legislate for Aboriginal interests. Pearson seeks only to find a way to improve this relationship.

Indeed, every other comparable Western democracy finds constructive ways to manage the special relationship with its indigenous peoples, within the structures of their liberal democracy.

The US, which Sheridan lauds as the paragon of liberal democracy, recognises the status of its indigenous people, according them domestic dependent sovereignty status under its constitutional law. Other great liberal democracies do the same.

Is New Zealand wrong to recognise the special relationship between the Maori and the crown within its liberal democratic ­arrangements?

To ignore such special relationships out of deference to liberal principles is to deny the indigenous history of each Western liberal nation. It is at odds with both historical and practical ­reality and is unsustainable.

Indigenous people are justified in seeking a voice in their affairs as a form of practical and pragmatic recognition in our constitutional arrangements.

Sheridan says, “Every citizen is fully included in the Constitution. An ethnic Hmong hill tribesman from Laos who is an Australian citizen is every bit as much an Australian citizen as me or any other Australian citizen. The moment we introduce classes of citizenship we are entering extraordinarily dangerous territory.”

We are not being asked to introduce classes of citizenship. We are being asked to create a mechanism for managing a special ­relationship.

Pearson does not advocate that some Australians should get to vote for two parliaments.

He has advocated that if the Constitution gives parliament the power to make laws with respect to indigenous peoples, it should also create a constitutional mandate requiring parliament to consult those peoples before it exercises its right to make laws about them.

Some people argue that the race power could be removed and not replaced. But this is not pos­sible. Without a replacement power, the ability to amend legislation such as the Native Title Act is put into doubt.

Not replacing the race power would also remove the commonwealth’s power to make laws with respect to Aboriginal and Torres Strait Islander people — which was the achievement of 1967.

Indigenous Australians stand in a special relationship to the Australian state, and Australia has a responsibility to find an appropriate mechanism for managing this special relationship.

Aboriginal people are also an extreme minority in Australia. So the constitutional mechanism we adopt to manage this special relationship has to be sensitive to the status of indigenous Australians as an extreme minority.

Pearson’s consultative body is designed to ensure the Constitution addresses this special relationship in a way that does not undermine the sovereignty of parliament and does not give one group of people special rights under the Constitution.

It creates a justifiable mechanism that ensures parliament holds consultations with indigenous people when it makes laws relating to indigenous affairs.

The history of Australia gives rise to the special relationship between Australia’s indigenous peoples and its Constitution. We cannot make sense of this special relationship by recourse to liberal principles alone: the conservative’s pragmatism and deference to history are also required.

Special relationships make sense only in a historical context, and this needs to be balanced with the demands of liberal principles.

Pearson’s consultative body is the most constructive and pragmatic way of creating a mechanism for managing this special relationship that is a product of Australian history.

Damien Freeman lectures on ethics and aesthetics at Pembroke College, Cambridge.