Reconciliation and Recognition: A Christian Approach to Indigenous Australians and Constitutional Change
Recognition of Indigenous Australians in Australia’s Constitution is a controversial aspect of the broader reconciliation movement. Conservatives often argue that constitutional recognition is unnecessary and may even amount to inserting racial division in our foundational legal document. Progressives often see recognition as merely acknowledging our first Australians and seeking their good in our foundational document, remembering their past and present suffering. As a Christian, I feel very deeply the call to reconciliation as foundational to my faith and have written an article exploring how a Christian perspective might address this question.
There is considerable overlap between an explicitly Christian perspective on reconciliation, and the Indigenous concept contained in the Yolngu expression ‘Makarrata’, which can be defined as ‘coming together after a struggle’. It is a matter of settling differences and moving forward together as one, which requires a genuine and forthright recording of history through truth-telling. First, one starts from the position of the aggrieved party, and then the two parties must come together for the aggrieved party to carefully and calmly state the facts about the dispute. Anyone who is disruptive or seeks vengeance is turned away. The leaders must seek a full understanding of the dispute – what undergirds it, who is responsible, and what each party wants. Then the settlement can be agreed upon. This settlement is a symbolic reckoning which indicates that the dispute is ended, finally and forever settled. The formerly disputing parties come together and work and live together to make peace and restore harmony for a shared future.
Restitution is the performance of a concrete action in order to achieve and maintain a harmonious relationship between formerly disputing parties.
The Christian perspective contains a number of similar elements. First, there must be repentance. It refers to a holistic mind change, a wholesale turning around which changes the entire process and outcomes of one’s thoughts and actions. Second, there must be confession, which means an honest and comprehensive statement of wrongs committed, which in turn relies on an admission of wrong. However, even if truth-telling is necessary for reconciliation, yet that very revealing can stand in the way of reconciliation as people grapple with the extent of the wrongs and injustices committed. This leads to the third element, which is lament. Lament is an external and visceral demonstration of empathy for the gravity of the wrong, which demonstrates the authenticity of the repentance and confession. Fourth, there must be apology. This entails saying sorry for the wrong, and as part of repentance changing one’s mind and behaviour to avoid the wrong in the future. A prerequisite for any radical change is forgiveness, which means letting go of resentment, bitterness, or what is owed due to the wrong committed, and pursuing a harmonious relationship.
Yet this reconstruction involves restitution. Restitution is the performance of a concrete action in order to achieve and maintain a harmonious relationship between formerly disputing parties. This is exemplified through the account of Zaccheaus in the Gospel of Luke. Upon believing in Jesus as ‘Lord’ and being reconciled to him, Zacchaeus pledges to give away half of his wealth to the poor, and to anyone he committed fraud against he pledges to provide four times the money stolen to them. Jesus sees this radical change and concrete action as evidence of true reconciliation: ‘today salvation has come to this house’. It demonstrates the genuine repentance of Zacchaeus, for his entire mind and being changes from greed and embezzlement to contrite generosity which manifests through his commitment to restitution. Finally, the cumulative effect is to build mutual trust and pursue a harmonious relationship as the culmination of reconciliation. This entails setting aside selfishness and distance to reach a position of mutual interdependence and responsibility, coming together in celebration of our differences to improve our social existence. This is the aim of Makarrata, to move forward together as one, and to seek peace and harmony as we build a shared future.
As seen in Ephesians 3, the tenor of reconciliation in the New Testament is that it is not racially based and it breaks down the barriers of hostility between races
Part of this coming together for a shared future is to include our First Australians in the Constitution. One of the less radical options is an acknowledgement in the preamble. This would be purely symbolic with no binding legal effect. However, the fact that this version of recognition is merely symbolic, without any legal consequence, means that the recognition is only partial at best. From the perspective of a theology of reconciliation, the reconciliation itself is incomplete, and therefore it is not efficacious. In the context of spiritual reconciliation, it is equivalent to the mere declaration that one is reconciled to God through Christ (‘justification’) without the transformation which externally demonstrates that reconciliation to God (‘sanctification’). It does not satisfy the requirement for restitution as part of the reconciliation process according to Makarrata, because there is no concrete action or practical change to demonstrate a recalibrated, harmonious relationship. Finally, a merely symbolic acknowledgement does not satisfy most advocates for recognition, and so is unsatisfactory as part of a shared future.
One more substantive proposal is amendment of the race power in the Australian Constitution, which allows the Commonwealth to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The most controversial aspect of the race power in this context is that it potentially supports the enactment of laws detrimental to the welfare of Aboriginal and Torres Strait Islanders. As such the preferred proposal appears to be insertion of an Indigenous-specific grant of Commonwealth legislative power for explicitly beneficial purposes. This is not racially based, but instead reflects the distinct historical connection and political detriment of Indigenous Australians. It would be a new positive power to recognize Aboriginal and Torres Strait Islander peoples in Australia, and make laws with respect to their heritage, cultures and languages, and connections to traditional land and waters.
A theology of reconciliation would entirely support this substantive change. As seen in Ephesians 3, the tenor of reconciliation in the New Testament is that it is not racially based and it breaks down the barriers of hostility between races: ‘There is neither Jew nor Greek… for you are all one in Christ Jesus’. Hence a racially targeted or discriminatory power to make laws for the detriment of Aboriginal and Torres Strait Islander peoples is not sustainable. However, this does not mean differences between groups are excluded or erased; rather, differences are positively incorporated and celebrated as part of a social harmony. A new positive power to specifically enable the passing of laws to protect and advance First Nations heritage and culture would be a type of restitution consistent with Makarrata, a concrete and substantive action which engenders mutual trust and contributes to a harmonious relationship between First Peoples and the Australian state.
Another option for substantive reform is the establishment of an Indigenous Advisory Body to provide a Voice to Parliament, including monitoring usage of the race and territories powers in the Constitution. This advisory body could be constructed alongside parliament to operate through a dialogue model. The fact that the body would be established through a constitutional amendment and/or statute, in conjunction with the fact it would provide non-binding, non-justiciable advice to Parliament, implies it would not impinge upon constitutional or parliamentary supremacy and would not undermine the features of Australia’s constitutional system.
Reconciliation is by its nature a difficult process which entails acknowledgement of guilt for which many of us are not ‘personally’ responsible, and substantive change which may be uncomfortable.
It is also not racist or contrary to equality to provide Indigenous Australians with special treatment through statute and/or in the Australian Constitution for at least three reasons. First, Indigenous Australians have a unique status as First Peoples. Second, they are recognized as such under international law (with associated rights to self-determination). Australia has ratified the Convention on the Elimination of Racial Discrimination; Article 1(4) states that special measures taken for the benefit of indigenous people do not constitute racial discrimination. That is an international recognition of the principle that providing specifically for indigenous people in a statute and/or the constitution does not amount to racial discrimination. Third, they have been subject to historical injustices by the state and are a disadvantaged minority group. Special measures to benefit Indigenous peoples have been accepted as being consistent with the Racial Discrimination Act 1975 (Cth) in the High Court.
A way to implement these possibilities, or another option, is adopting a treaty to entrench an agreement and formal relationship between First Nations people and the Australian state. Conceptually, treaty and self-determination are consistent with the Australian constitutional values of federalism and diversity. The idea of federalism offers a conceptual framework for recognising self-determining sovereign Indigenous political communities and institutionalising forms of Indigenous Australian autonomy. Federalism challenges the claim that sovereignty is indivisible and unshareable, for at the heart of Australia’s constitutional system is a structure which facilitates the mutual coexistence of multiple political communities (Commonwealth, States and Territories). Federalism also has its roots in Scripture through the idea of covenantal relationship.
Reconciliation is by its nature a difficult process which entails acknowledgement of guilt for which many of us are not ‘personally’ responsible, and substantive change which may be uncomfortable. Yet in a Christian theology of reconciliation, Christ took the sin and guilt of the world upon himself, and commanded us to do likewise. This is exemplified in the Parable of the Good Samaritan, where the Samaritan breaks down the legal and cultural categories of duty and obligation, and loved his neighbour in a selfless and sacrificial way. Rather than simply ignoring the prone Jew, for whom he had no officially recognised responsibility and to whom he was even hostile due to entrenched racial tensions between Jews and Samaritans, the Samaritan chose to rescue and provide for the Jew himself, seeking his good at personal expense and effort. In a similar way, though current Australian governments and the current Australian population may not bear direct responsibility for the atrocities of the past, a theology of reconciliation requires confession of these sins, and substantive action to pursue a harmonious relationship.
Ultimately then, reconciliation demonstrated by recognition of indigenous people through acknowledgement in the Australian Constitution is a Christian imperative. Working for justice and reconciliation between Indigenous and non-Indigenous peoples by supporting Australia’s First Nations People’s rights to self-determination and better recognition and respect as the First Peoples of Australia is a godly way of living to which Christians are called. Truth-telling, repentance, apology, lament and restitution in various ways, including recognition of the First Nations People in the Australian Constitution and possibly other statutes, are all important parts of Makarrata, a ‘coming together after a struggle’, that is the work of the whole of God’s people.
Dr Alex Deagon is Senior Lecturer in the School of Law, Queensland University of Technology. His doctorate is titled “Using Christian Theology and Philosophy to Construct a Jurisprudence of Truth”.