Will Constitutional Recognition of our Nation’s First People’s be any more than rhetoric? By: Ryan Mahon

MDIA2002 Assessment 4: Media Analysis 2

Will Constitutional Recognition of our Nation’s First Peoples be any more than rhetoric?


Name: Ryan Mahon (z5076131)

Course: MDIA2002

Class: Thursday at 1:30pm (H13A)

Word Count:  2494 words (Without quotes)

The public debate about the Constitutional Recognition of Aboriginal and Torres Strait Islanders has gained front-page status in print media in the months preceding and following the 2016 Federal Election. The Federal Government is proposing a referendum to recognise Aboriginal and Torres Strait Islander (hereafter ATSI) Peoples as the First Peoples of Australia and to afford protections against discrimination. Protection from discrimination however is already afforded to ATSI Peoples by the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW). Public commentators have argued that Constitutional Recognition (also known as Recognition) would be little more than a token gesture to Australia’s first people, however the consequences of this referendum transcend both politics and rhetoric. Entrusted to the Australian people is something far more fundamental, if the referendum is passed, the changes made to the Constitution could have a significant impact on the future of Indigenous Recognition and Native Title. The Federal Government has been investigating the possibility of setting a date in 2017 giving the Australian people an opportunity to vote on the referendum.

Media coverage of this debate has seen the publication of many (hard) news, views or opinion articles on the issue. Some articles have the intention to simply inform their audiences, however some journalists have intended to persuade their audiences through the use of a wide range of argument types to frame their writing. Print media articles have framed the debate using different perspectives to either support or condemn the proposal to Constitutionally Recognise Aboriginal and Torres Strait Islanders in the Australian Constitution. These articles contain aspects of both hard news and opinion.

A critical analysis of these articles concludes that despite each of these articles taking different angles and having distinct differences on the same issue, they all assume that the readership is aware of Constitutional Recognition, but they may not know what form this Recognition would be in. However, these journalists and commentators assume their readership may not have intimate knowledge of the legal ramifications of Recognition. Some authors have argued that Constitutional Recognition would unite Australia, whilst others have argued that it could divide the nation.

In his article, “Push for recognition a threat to national unity”, Stephen Fitzpatrick explicitly states his central claim, that Constitutional Recognition could lead to disunity within Australian society. The emotive evaluation of the referendum by using the words, “a threat”, indicates an evaluative judgement against Constitutional Recognition. The headline also uses, “national unity”, indicating this current unity would be destroyed if Constitutional Recognition was to occur. The author implies to their audience, the slippery slope of potential negative consequences if Recognition was granted. By using “Recognition” and “a threat to national unity”, Fitzpatrick is creating a direct causal link between Recognition and national disunity. Since the article has a clear central claim, it would be possible to assume that Fitzpatrick is appealing to a like-minded audience.

In addition to his own views and opinions, Fitzpatrick appeals to a notion of authority by quoting Australian historian Keith Windschuttle several times throughout the article. It is evident that Fitzpatrick structures his article by making a claim about Recognition such as, “It poses (sic) a clear danger to political unity” and then justifies this claim by quoting Windschuttle. This appeal to authority referenced throughout the article is a construct of Fitzpatrick, as he labels Windschuttle as a historian in order to appeal to a perceived expertise on the issue. However, Fitzpatrick fails to mention throughout his article that Windschuttle has been widely criticised within the academic community for his belief that many historians had fabricated the extent of racism in Australia during the White Australia Policy during the 1900s (Constitutional Recognition carries seeds of reconciliation by Chris Kenny [The Australian]). An instance of where Fitzpatrick appealing to authority is seen in this extract below,

“Constitutional Recognition of Indigenous Australians could lead to the break-up of the nation. Historian Keith Windschuttle has warned, unless voters are clear that notions of sovereignty accompanying it pose a clear danger to political unity.”

Fitzpatrick constructs a false analogy relating Native Title claims from the 1990’s in an attempt to make a legitimate comparison between Constitutional Recognition and Native Title ownership and sovereignty over freehold land (Mabo V Queensland 1992 [HCA]). There is also the assertion of a possible Ad Populum Argument as Fitzpatrick argues, if Australians were aware of the potential implications of Constitutional Recognition, then they would be against it. This is legitimised by the author attributing the content of the quote to Keith Windschuttle, however the veracity of Windschuttle’s arguments must also be questioned as it cannot be determined whether he is an impartial authority on the issue.

Fitzpatrick then attempts to appeal to the emotions of his readership by providing a confronting analogy of the possible unintended consequences of Recognition. Fitzpatrick wrote,

“ATSI Peoples themselves… use the success of native title claims over the past two decades to plot a campaign for full sovereignty.”

“The broadly held view of constitutional recognition – that it would be a courteous symbolic gesture with no real consequences – ignores the potential for it to become a bargaining position for a local black state to exert far more influence.”

The main claim that this appeal supports is that Constitutional Recognition will create a precedent for Native Title claims with ATSI communities forming their own Sovereign Nations. There is an assumption by the journalist that the Australian people are unaware of this potential outcome. Further to this, an Ad Hominem argument is used, alluding that ATSI Peoples are propagating Constitutional Recognition in order to increase their influence and power. Consistently throughout his article Fitzpatrick implies the ‘potential’ negative consequences of Constitutional Recognition. Fitzpatrick’s article appears to be mainly opinion as he uses only one unverified source (Windschuttle) to add veracity to his arguments. Like Fitzpatrick, other journalists have published articles on Recognition that appear to contain more opinion than they do hard-news.

Prime minister Malcolm Turnbull and opposition leader Bill Shorten arrive at the grand final breakfast ahead of the GF today in Melbourne, Saturday Oct. 3, 2015. (AAP Image/Tracey Nearmy) NO ARCHIVING EDITORIAL USE ONLY

Image: Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten have taken a bi-partisan approach to Constitutional Recognition, however they have not set a date for the referendum.

Andrew Bolt, a prominent conservative commentator has also publicly expressed his opposition to Constitutional Recognition. Andrew Bolt wrote an article for the Herald Sun called, “Recognition for Aborigines in Constitution only serves to divide.” It is important to note that Bolt uses the term, “Aborigines” an expression deemed offensive and degrading by many in the community. Considering the language used in the headline, it would be appropriate to determine that Bolt’s imagined readership would most likely be a white, middle or upper-class readership who would share his conservative sentiments. It is evident that this imagined reader is positioned to agree with the author as the use of such colloquial terminology could be deemed offensive by someone whose views are not aligned with Bolt’s.

 Andrew Bolt’s article would be more opinion than hard news, as he does not back up many of his claims. At several points throughout his article he makes a non-sequitur argument as he tries to draw links between events and consequences where there may not be any. Bolt suggests that Constitutional Recognition will result in Australia dividing into two-societies. Below is an extract from Bolt’s article,

“It’s apartheid. It is wrong to use the law to insist some of us are First Australians with extra rights because of their ‘race’ and the rest are second- class (sic) Australians.

“Changing the Constitution, as Labor and the Liberals want, means judges could insist this apartheid is our future. Don’t risk it.”

A hasty generalisation or over generalisation of all ATSI Peoples occurs in this extract as Bolt asserts that all ATSI Peoples would misuse the rights afforded to them from Constitutional Recognition for Native Title. Bolt uses the false analogy of apartheid in an attempt to add veracity to his arguments. He is alluding to the possibility for reverse-racism to occur in Australia. Bolt uses “us” and “their” to create an affiliation with his intended readership, a like-minded audience.

In the above extract from Bolt’s article, the agent is identified as, “First Australians”, whilst the affected are “the rest” of society. Bolt argues that due to the manipulation of the Constitution, if it were to be amended, non-indigenous Australians would be disadvantaged. Evident in both Bolt and Fitzpatrick’s articles is an appeal to negative consequences. They argue that Constitutional Recognition is a slippery slope toward Native Title where ATSI Peoples will have the power to create their own Sovereign States.

The debate on Constitutional recognition was recently re-ignited when the ABC documentary I Can Change Your Mind About Recognition was aired. The documentary followed Federal Member for Barton and Indigenous advocate, Linda Burney MP and Andrew Bolt as they travelled to remote Aboriginal communities to discuss the referendum. Andrew Bolt has previously told Fairfax Media he is opposed to the Constitutional Recognition of Indigenous people, whilst Linda Burney has pushed for greater consultation with Aboriginal communities on the matter.


Image: Andrew Bolt and Linda Burney MP on the set of ABC’s, “I Can Change Your Mind About Recognition.”


Paul Daley is critical of commentators such as Andrew Bolt in his article, Indigenous recognition deserves serious debate. Andrew Bolt shouldn’t be a part of it”, for The Guardian. Daley asserts that he is for Constitutional Recognition, however he argues that there has been a lack of public debate on the matter. A dichotomy of values emerges between Daley’s article and Bolt’s article as Daley dismisses Bolt’s arguments through an Ad Hominem informal fallacy. Daley’s counter argument against Bolt calls Bolt’s views and opinions, “indulgent pet assertions”. In addition, Davis criticised Bolt in the following extract,

“Choosing Bolt for the program (I Can Change Your Mind About Recognition)… rendered it a laughably inadequate vehicle to tackle the questions relating to the desire for Recognition within Indigenous Australia – which is where it could impact most.”

 Daley not only attempts to assert a point of view, but he is also attempting to undermine the arguments put forward by other journalists who are in opposition to Recognition. As the article provides background information about the ABC program and the engagement of the ATSI community and stakeholders in Constitutional Recognition consultations, Daley assumes an audience that would fundamentally agree with the referendum. However, this assumed audience may not know how that Recognition should be materialised. Daley makes the presumption that the argument for Recognition, as stipulated by I Can Change Your Mind About Recognition, has been reduced to, “yes (black) v no (white). Although this is a very simplistic and generalised analogy, Daley uses it to criticise the lack of stakeholder engagement by the government.

One of the main claims in this article is that there has not been enough consultation with the ATSI community on Recognition. This is backed by Daley’s warrant that ATSI advocates for and against Constitutional Recognition are not being consulted as stakeholders. Daley argues that Constitutional Recognition does not go far enough to solve systemic inequalities faced by many ATSI Peoples. Daley wrote,

Tens of millions of dollars are being spent on Recognise (a campaign to raise awareness about Constitutional Recognition)… At a time when the Abbott/Turnbull governments have cut at least $550 million from Indigenous programs.”

“Why not reflect the nuance and complexity of argument and concern with Aboriginal and Torres Strait Islander Australia by having Indigenous proponents on both sides of the debate?”

Daley attempts to create a direct causal link between the lack of ATSI stakeholder consultation by the government in relation to matters that affect Indigenous communities and ATSI disengagement with the political process. Daley uses opinion within a deeply embedded argument to add veracity to his claims and conclusions about Recognition. Daley cites multiple sources including the Australian Bureau of Statistics, Constitutional law, Stan Grant, Mick Gooda and data released by the Federal Government. Daley wrote,

“The Indigenous voting enrolment rate is 58%. I’m told that as few as 30-35% of Indigenous Australians actually bother to vote. Many I know abstain on ideological/political grounds –  a protest against legitimising and acknowledging what they view as the “settler state”.

Daley appeals to this analogy about ATSI voter disengagement in order to criticise the government. Daley, unlike Bolt does not blame Indigenous communities for their disengagement, but instead has criticised the government’s inability to ensure that all stakeholders can come to the table.

Daley clearly outline his primary claim that the government is not engaging all stakeholders in a proper conversation on Recognition. He uses Andrew Bolt, a conservative commentator who has received hours of air-time and numerous columns on the issue as an example of the issue with the current public debate. Whilst Bolt receives this media attention, Indigenous stakeholders have not been consulted by the government or the Prime Minister’s Referendum Council. This leads to Daley’s secondary claim that in addition to Recognition, treaties need to be signed by the government and ATSI leaders. Daley however, does not assert his secondary claim until the last several paragraphs of his article. This could be because his imagined readership could be one that supports Recognition, but may not know enough on the subject matter to support any treaties.

In addition to Daley, Jackie Higgins (SMH), George Williams (SMH) and Megan Davis (ABC) all appeal to emotion, popular opinion, strawperson arguments and presumptions to conclude that Australia needs to have a ‘Treaty’ in addition to an amendment to the Constitution. The articles written by Bolt and Fitzpatrick have the implication that any amendments to the Constitution would act to divide the nation, whilst Daley, Higgins, Williams and Davis argue that it may bring the country closer together. However, they argue further steps need to be taken beyond the symbolic gesture of changing the wording of the Constitution.

Megan Davis in her article, “Scant Recognition: Have Aboriginal and Torres Strait Islander Peoples any Reason to Hope?”, explicitly outlines her claim that ATSI Peoples need to be a part of the discussion on Recognition for it to hold any significance. The reader is positioned to agree with the article as Davis speaks from a position of authority. She is a Professor of Law at the University of New South Wales, Chair of the United Nations Permanent Forum on Indigenous Peoples and a member of the Prime Minister’s Referendum Council adding veracity to the quality of her argument. In holding these positions, Davis’ credibility as a source should be reliable. Davis appeals to authority several times throughout her article including in the following extract, 

“We must be careful to acknowledge that while symbolism is nice and may have some statutory benefits, as Dylan Lino argues, “the pursuit of wholly symbolic recognition in written constructions often neglects valid grievances about how power is wielded by the state over the group (ATSI Peoples) in general””.

Megan Davis appeals to the authority of Dylan Lingo from the Melbourne Law School, Indigenous Law Centre to add veracity to her arguments. Davis focuses on the implications of Recognition for the Indigenous community in her article, whilst Bolt and Fitzpatrick focus on the agents of change, white policy makers and voters. Davis appears to emphasise the “symbolic” nature of Recognition as her imagined audience (the wider public), may be unaware of what Recognition is. It is important to note Davis’ description of Recognition as symbolic is in contradiction to Bolt’s description of it being a gateway to Native Title. Davis spends the majority of her article explaining the need for treaties in an attempt to inform and in turn, persuade her imagined audience into agreeing with her.


Image: The Prime Minister’s Referendum Council including Megan Davis (Front row, 2nd from right)

Polling conducted on behalf of the Recognise campaign found that 77% of Non-Indigenous people and 87% of Indigenous people would vote “yes” for constitutional change if a referendum was to be held. However, polling conducted at the same time showed a drop in the awareness, the constituency has of the campaign. Awareness of Recognise has dropped from 63% in mid-2015 to 51% in October 2016. This data demonstrates that although the majority of Australians are in favour of Constitutional Recognition, they may be unaware of the meaning and consequences of Recognition and how it can be acted upon. This unawareness in the constituency could be a motivating factor for journalists and authors to publish articles arguing for treaties in an attempt to inform the electorate, who could be agents of change through their voting power.

In many of the print-media articles published on Constitutional Recognition, it is evident that the terms, “Constitutional Recognition” and “Rights” are identified as contentious terms. The definitions of these terms had been subject to debate in the sample texts and different authors have stipulated different definitions for them. Some authors construct the term, “Rights” to mean the rights of ATSI Peoples whilst others have constructed the term to mean the rights of Australians to vote in the Referendum and the rights of Australian people as a whole.

Constitutional Recognition as defined by Megan Davies (ABC), Paul Daley (ABC) and George Williams (Sydney Morning Herald) is simply a change of the wording of the Australian Constitution to acknowledge Australia’s first peoples. Andrew Bolt (Herald Sun) and Stephen Fitzpatrick define Constitutional Recognition as, “a threat to national unity”, that, “can only seek to divide”. The view of Recognition that the reader forms is highly dependent on the work that they read as different authors have defined the term in different lights in order to support their own views and arguments on the issue.

In analysing a selection of articles, it is revealed the majority of authors are appealing to an imagined readership that would vote ‘yes’ in a Constitutional Referendum, but may be unaware of the consequences of such actions. Andrew Bolt and Stephen Fitzpatrick both attempt to persuade the readership by expressing their opposition to Recognition as they feel it would be a slippery slope to Native Title. Paul Daley is not only for Constitutional Recognition, but also a Treaty and undermines the critics of Constitutional Recognition, such as Andrew Bolt in order to add veracity to his own arguments. Daley discredits the arguments of Bolt by calling them, “pet assertions”. Underlying all articles was the opinions of their respective authors attempting to convince the readership of certain points. In some instances, such as in the Daley, Williams, Higgins and Davis articles, the opinion was embedded within a hard-news article. However, there were aspects of opinion, as a number of informal fallacies and counter-arguments are utilised in these articles, but the opinions used appear to be impartial and expert. Indigenous Recognition is a passionate issue for many and these authors provided some of the best examples of journalistic integrity through their use of informed opinion and attempts to avoid bias.


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