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University of New South Wales Law Journal |
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[2] Being a recent term and political theory, multiculturalism does not
expressly figure in the Constitution. However, two of
its underlying ideas – namely, differentiated citizenship and group
recognition – are implied. Section 51(xxvi)
grants the Commonwealth Parliament the power to make laws regarding ‘[t]he
people of any race, for whom it is deemed necessary
to make special laws’.
In practice, federal governments have generally declined to exercise this power,
whether it be to grant
special rights, or to deny common rights, to cultural
communities. In August 1999, the Parliament passed a law proposing to alter
the Constitution by
inserting a preamble that included significant cultural recognition –
Aborigines and Torres Strait Islanders as the nation’s
‘first
people’, and the diverse cultural backgrounds of the Australian
people.[2] A referendum
held on the preamble (and on whether Australia should become a republic) later
in the year failed to win the required
support. The controversy over Australian
multiculturalism is an extra-constitutional one.
[4] Multiculturalism developed in Australia as a series of tentative ideas and piecemeal reforms sponsored by successive Labor and Liberal Coalition Federal Governments. Although initially focused on migrant absorption, its ambit has been broadened to include ‘all Australians’ and its terms have been progressively elaborated and refined. These have enjoyed broad bipartisan support and now inform a multitude of institutions and processes at the federal, State or Territory, and local levels of government, as well as many private sector organisations. The terms of Australian multiculturalism are contained in two overarching policy statements presented in Parliament, the National Agenda for a Multicultural Australia (1989) (‘National Agenda’) launched by the Hawke Labor Government, and A New Agenda for Multicultural Australia (1999) (‘A New Agenda’), launched by Howard’s conservative Coalition.[3] I intend to focus on these documents in order to clarify and evaluate the political thinking implicit in Australian multiculturalism.
[5] While criticisms of multiculturalism cut across the political spectrum, a few tend to emanate from particular quarters. From the right, we often hear that multicultural provisions undermine the unity and character of the nation or that they are unfair and an affront to equal citizenship rights.[4] From the left, we often hear that they haven’t gone far enough and are really a fraud, a kind of ‘fig leaf’ for continued white Anglo-Celtic supremacy.[5] Interestingly, these diverse reactions have their counterparts in contemporary political philosophy, with some theorists arguing that state recognition and support of people’s cultural identities violate fundamental liberal principles,[6] and others arguing that liberalism in fact supports a vast array of cultural rights or degree of cultural toleration, the likes of which far exceed anything known in Australia.[7]
[6] My contention is that there is genuine innovation and justified moderation in Australian multiculturalism. It primarily rests on two political theories, one individualistic and rights-based, and one collectivist (or republican) and pragmatic. Both of these are not only compatible with liberal values, but further realise our own best liberal democratic traditions.[8] At the same time, there are some crude nationalistic elements to Australian multiculturalism that sit awkwardly with its fundamental features and with Australian democracy. These elements ought to be excised. However, for all its contentiousness, multiculturalism as presently instituted serves Australians well. It creates a political framework within which our rights to cultural expression and non-discrimination are honoured, cultural diversity is valued as a public good, and the big question of what it means to be an Australian is largely left up to us all, individually and collectively, to answer.
[7] The
place of Indigenous Australians within this discussion should be clarified.
Although official multiculturalism now applies
to Aboriginal and Torres Strait
Islander peoples, it also, to its credit, recognises that ‘their distinct
needs and rights
[should] be reaffirmed and accorded separate
consideration’.[9]
Indeed, the background considerations as well as many of the issues involved in
the political and legal recognition of Indigenous
peoples – land rights,
self-government, treaties, political representation, customary law, symbolic
recognition – are,
I believe, quite different from those of other cultural
groups.[10] Accordingly,
this discussion of Australian multiculturalism is directed toward the situation
of non-Indigenous Australians.
[9] Like Canada and the US, Australia explicitly managed its cultural diversity up until the mid-1960s through assimilationist policies of ‘Anglo-conformity’. Government documents claim that a new period of ‘integration’ followed, where the settling and servicing of large numbers of migrants were emphasised, rather than the loss of their original language, culture and identity. The multicultural model is said to operate from 1973.[13] It is useful to juxtapose this historical account with a more general one. Joseph Raz charts three sequential liberal responses to cultural diversity.[14] Toleration, which largely leaves minorities to live as they please as long as they do not interfere with the dominant culture. Non-discrimination, which protects the individual rights and liberties of all citizens by outlawing discrimination on the basis of race, religion, ethnicity and other group characteristics. In this, it seeks to ensure that the common citizenship rights of liberalism are truly common. Finally, the affirmation of multiculturalism, which, Raz says, ‘rejects the individualistic bias’ of the non-discrimination model, recognises the value of cultural diversity, and actively assists groups to maintain their distinct cultures within the larger society.[15]
[10] Both
of these synoptic accounts fail to capture key aspects of the Australian case.
The long-standing White Australia Policy
and emphasis on assimilation and
Anglo-conformity suggest that intolerance was in fact the initial
dominant response in Australia. Assimilation was clearly anticipated in the
so-called ‘integration’
measures of the
mid-1960s.[16] Unlike
Canadian multiculturalism, which emphasised linguistic and cultural maintenance
from the start, Australian multiculturalism
took shape during the 1970s and
early 1980s as a program of migrant absorption and
integration.[17] But most
important, for present purposes, is that Raz’s distinction between
non-discrimination and affirmative multiculturalism,
although helpful, needs to
be recast in locating Australian multiculturalism. As we will see, Australian
multiculturalism:
[13] Another crucial limitation is that the right to cultural identity is ascribed to and assertible by individuals, not by groups corporately. The phrasing used throughout the National Agenda is deliberate: it is ‘all Australians’ – that is, each individual Australian – who have this or that right. Lest there be any ambiguity, the National Agenda goes on to state that ‘[f]undamentally, multiculturalism is about the rights of the individual’.[19] Cultural minorities qua groups have no entitlement. This qualification is of the utmost importance. It means that Australian multiculturalism remains committed to the liberal idea that the ultimate unit of moral worth is the individual, and it avoids one of the traditional liberal concerns about group and cultural rights; namely, that the interests and rights of the individual may be jeopardised in the interests of the group. In this, Australian multiculturalism follows closely the terms and reasoning of art 27 of the International Covenant on Civil and Political Rights (‘ICCPR’)[20] – to which Australia is a signatory – which states, in part, that ‘persons belonging to [ethnic, religious, or linguistic] minorities shall not be denied the right ... to enjoy their own culture’ (emphasis added).
[14] In practical terms, individuals acting individually or jointly might exercise the right to cultural identity. In the former case, it might, for example, entitle an individual to wear his or her traditional garb or headgear even where standard uniforms are required. It might entitle individuals to observe certain rituals, such as traditional holidays or the special preparation of foods. When jointly exercised, the ‘cultural identity’ provision might include a right to establish a parochial school or to a duly recognised customary marriage. The difference is that while the interests of individuals are still being served in these cases, a community of members is required to give effect to the practice and to impose a duty of recognition on others. In contrast, the right to cultural identity offers no basis for granting powers or authority to cultural groups qua groups.[21] It seems to rule out group rights in the sense of political and legal autonomy that would enable cultural communities to be self-governing, and which would complicate, if not jeopardise, the common citizenship status of the members of these communities.
[15] While the right to cultural identity represents a radical departure from earlier practices of liberal democracies (assimilationism, toleration, non-discrimination), it conforms to the moral ontology of liberal individualism. It does not so much break from liberal democratic norms as reinterpret and extend them. We can see this innovation also in the second policy dimension – social justice. A traditional reading of the ‘right to equality of treatment and opportunity’ would understand it to mean that people should not be denied offices and opportunities on the basis of their group characteristics, which is to say, on the basis of direct and invidious discrimination. Such a principle of non-discrimination simply affirms, of course, the traditional liberal rights of citizenship, and has nothing per se to do with cultural distinctiveness or maintenance.
[16] Recognising direct discrimination leads, however, almost ineluctably to recognition of indirect discrimination as well. According to the National Agenda, this kind of discrimination is ‘unwitting and systemic’ and ‘occurs when cultural assumptions become embodied in society’s established institutions and processes’. Or as the Racial Discrimination Act 1975 (Cth) puts it, indirect discrimination occurs when a ‘practice or policy appears to be fair because it treats everyone the same, but it actually disadvantages more people from one racial or ethnic group’.[22] The second part of the social justice dimension addresses this concern through the removal of various group barriers. Like the right to cultural identity, the right to social justice can sustain a wide array of claims in which cultural attachments and convictions are at stake. And like the right to cultural identity, it more fully realises, rather than breaches, liberal democratic norms and common citizenship rights. Thus, one finds even the US, which does not have a declared government policy of multiculturalism, endorsing similar provisions. For example, Title VII of the Civil Rights Act of 1964, 42 USC s 2000e, together with the ‘Guidelines on Discrimination Because of Religion’ of the US Equal Employment and Opportunity Commission[23] have been used as instruments for accommodating religious dress and time off for religious holidays.
[17] If part of Australian multiculturalism is individualistic and
rights-based (ie, the rights to cultural identity and non-discrimination),
then
the other key part turns on the collectivist idea that cultural diversity is a
public good that serves all Australians. We see
this idea implied, albeit
clumsily, in the third policy dimension of economic efficiency. Thus, for
example, the retention of foreign
languages by migrants is to be encouraged so
as to assist Australians and Australia to compete in the global marketplace. The
bald
instrumentalist terms of the economic efficiency dimension might be taken
to mean that the interests of individual citizens are ultimately
subservient to
the national project that is ‘Australia’. The National Agenda
goes on to state, for example, that ‘[a]ll Australians should be able to
develop and make use of their potential for Australia’s economic and
social
development’.[24]
However, the policy statement clarifies elsewhere that the ultimate value
resides in the individual:
By seeking to improve the management and use of our human resources, and thereby to contribute to a sustained improvement in our standard of living, multicultural policies serve the interests of us all.[25]
[19] An interesting question is how the principles of Australian multiculturalism relate to three cultural rights claims often discussed by political theorists: the symbolic recognition of cultural minorities in official emblems, anthems, flags, public holidays, and the like; the public subsidisation of ethnic festivals, media, and traditions; and special representation in the legislature.[26]
[20] Australian governments provide information to the public in many languages, either directly or via interpreter and translator services, and multilingual explanations appear on electoral ballots, census forms, and so on. While these measures might help to sustain linguistic and cultural distinctiveness, they are best understood as attempts to integrate new Australians from non-English-speaking backgrounds and to fairly and effectively administer the business of government. Australia has rightly, I think, stopped short of symbolic recognition of minority cultures. Such a cultural right would presumably also apply to the dominant majority, and so some additional argument is required to explain why, in such circumstances, an established majority should not prevail at the symbolic level. Cultural rights theorists typically frame this additional argument in terms of respecting equality.[27] But, as a practical matter, it is not clear how one can include the images, stories, languages, festivals of all or even most minority groups in the official paraphernalia of states. How many images can reasonably appear on a flag? How many languages can be squeezed into a letterhead? How many cultural groups’ festivals can be recognised as public holidays? To include just a few is tokenism, not the fulfillment of equality. Symbolic recognition is one of those areas where Conor Cruise O’Brien’s wry observation that ‘sometimes the only right a minority seems to want is the right to become a majority’ seems especially apt.[28]
[21] The idea of cultural rights to public subsidisation also has little currency in Australian multiculturalism. Federal, State, Territory, and local governments have engaged in extensive funding programs of minority cultural groups and traditions. There is even, in the National Agenda, perhaps the slightest suggestion of a moral entitlement to public funding: ‘All Australians should enjoy equal life chances and have equitable access to and equitable share of the resources which governments manage on behalf of the community’.[29] Nevertheless, the general rationale for government funding of SBS, ethnic festivals, community needs, and the like seems to be, not that cultural minorities have a right to such funding, but rather that it serves the interests of all Australians (or all residents in a State, Territory, or municipality). That is, the public funding programs reiterate the ‘cultural diversity as public good’ idea. The underlying moral justification is the presumption that everyone benefits from the policy of state cultural subsidisation – not only the minority members who happen to receive the assistance (as in minority rights arguments); not only the majority of a political community (as in some utilitarian justifications); and not only an abstract entity such as ‘the nation’ (as with national corporatism).
[22] Claims for special minority representation, such as dedicated parliamentary seats, are more complicated. While, in Australia, special political representation has been discussed mainly in relation to Indigenous peoples,[30] some scholars have made the case in relation to a plethora of identity groups.[31] Such representation can take a number of forms. It might be arranged much in the manner of affirmative action policies, where virtually any individual member of the group is eligible for selection or, in this case, election to a reserved seat. The aim of this arrangement is simply to have the legislature better reflect the social composition of the population. The group is given a ‘voice’ in the legislature only in the highly derivative and contingent sense that the minority members who are elected may be more sensitive to the concerns and interests of their group and may express, in their own way, those concerns. While this arrangement has been little discussed in Australia, a non-rights-based variation of it has been suggested. This involves encouraging political parties to run Indigenous people in a certain number of winnable seats.[32] Because both these arrangements essentially entail a right and/or privilege held by individuals who happen to be members of a particular group, it theoretically conforms to the individualistic terms of Australian multiculturalism.
[23] Dedicated parliamentary seats might be filled by
minority members who are authorised to represent the minority. This model is
found in a number of liberal democracies that emerged out of the consolidation
of various territorially concentrated ethnic and national
groups (eg, Belgium),
or which entered into agreements with their Indigenous peoples (eg, New
Zealand), and has been entertained
by some Australian Indigenous bodies. Among
other procedures, the minority’s representatives might be nominated by the
leadership
of the minority whose names are then ratified (or rejected) by the
legislature, or they might be elected directly by members of the
minority.
Whatever the procedure, the compatibility of this form of representation with
the philosophy of Australian multiculturalism
is an open question. The special
status and needs of Indigenous communities mean that, for them, the issue should
be decided on grounds
other than multicultural policy. Dedicated parliamentary
representation for other ethnic and cultural communities has not been an
issue
in Australia.
[25] The Canadian political philosopher, Will Kymlicka, exposes the more
general overstatement of allegiance that is involved:
An Australian who commits some of her time and resources to helping people in developing countries, or in her country of origin, or who pushes Australia to increase its foreign aid budget, may not be putting Australia’s interests ‘first and foremost’, but she is not doing anything wrong.[34]
[30] The same cannot be said of the third dimension, which now links the right to equality of treatment and non-discrimination to an ability to ‘contribute to the social, political and economic life of Australia’. This smacks of a misplaced consequentialism. Australians should be entitled to enjoy the basic right of freedom from discrimination on the basis of race, religion, ethnicity or culture regardless of their capacity to contribute to the social, political, and economic life of the country. Such a right is not forfeited, for example, by becoming an invalid, a long-term hospital patient, or even a prison inmate.
[31] The fourth dimension, in contrast, represents an apparent improvement
over its 1989 counterpart. Apart from substituting the
lovely sounding
‘productive diversity’ for the harsh language of ‘economic
efficiency’, it also makes very
clear that the intended beneficiaries of
this productivity are ‘all Australians’, and not an abstract,
corporate entity
like ‘project Australia’. However, this improvement
is mitigated by the preamble to A New Agenda’s statement of
multicultural dimensions, part of which reads:
Australian unity in ... diversity is based on such moral values as respect for difference, tolerance and a common commitment to freedom, and an overriding commitment to Australia’s national interests.[36]
[34] The
architects of Australian multiculturalism have undoubtedly presented a bold
approach to the question of national identity.
Except for the insistence on
English as the lingua franca, they have avoided all reference to
traditional Anglo-Celtic or Australian dimensions of culture. As the National
Agenda stresses,
colour or language, style of dress or mode of worship, are no indication of the degree of personal commitment to the future of our nation. Being an Australian has nothing to do with outward appearance.[38]
[36] According to John Hirst, Chairman of the Commonwealth Government’s civics and citizenship program in schools, a civic identity would be appropriate if ‘we were truly a very diverse society, with a number of distinct ethnic groups each maintaining its own culture’.[40] Because modern Australia is not such a place, he argues, but rather substantially a ‘melting pot’, with high intercultural marriage rates and so on, there is much more Australians might agree on. Yet, it seems to me that even though Australian society is highly integrative, it would be a mistake for government to try to define Australian national identity in anything other than civic terms. Hirst’s own suggestions seem to confirm this. His school curriculum includes a ‘series of lessons on how Australians have over the years answered two questions: who is an Australian and what sort of nation is Australia to be?’.[41] The material includes Aboriginal Dreamtime stories, Henry Lawson’s tales, Fred McCubbin and Sidney Nolan paintings, Weary Dunlop’s wartime courage, and Paul Keating’s speech on the burial of the Unknown Soldier.
[37] This
much is welcome and to be expected. Every liberal democracy should speak in its
own idiom, and rehearse the manifold parts
of its history. For too long in
Australia, well before multiculturalism, our school curricula were derelict in
these respects. The
history we learnt was almost anyone’s but our own.
However, Hirst’s ‘answer’ to what we might further agree
on is
actually to frame two questions about who we are. His nominated case
studies are wide-ranging (although conspicuously thin on stories from the
migrant experience)
and inconclusive. His survey of responses on Australian
national identity offers us nothing definite about which we might further
agree.
But this is just to say that Australian national identity is, as it has always
been, a work-in-progress. Multicultural Australia
– or better,
multiculturalism Australian-style – is simply another chapter in the
story, albeit with one important difference.
It rightly recognises that it is
not the business of government to close the conversation and complete the
definition of what it
means to be an Australian.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/72.html