NOEL PEARSON

The Monthly (Australia) - - FRONT PAGE - COM­MENT BY NOEL PEARSON

Iam sit­ting on a ve­ran­dah on Thurs­day Is­land, where the last of 12 First Na­tions di­a­logues on the con­sti­tu­tional recog­ni­tion of Aus­tralia’s orig­i­nal peoples is tak­ing place. Each di­a­logue in the se­ries in­volved around 100 First Na­tions rep­re­sen­ta­tives, as well as or­gan­i­sa­tions and in­flu­en­tial in­di­vid­u­als.

The process was un­prece­dented. The In­dige­nous po­lit­i­cal world, while not with­out strong women, has long been dom­i­nated by men. This process was led by two Abo­rig­i­nal women: vet­eran health ad­vo­cate Pat An­der­son and law pro­fes­sor Me­gan Davis.

There were no black faces at the con­ven­tions with the colo­nial found­ing fa­thers, when power in Aus­tralia was di­vided up. The ab­sence of na­tive voices meant the Con­sti­tu­tion of 1901 did not al­lo­cate any power to those who had oc­cu­pied and owned Aus­tralia for at least 53,000 years prior to the for­ma­tion of the new Com­mon­wealth.

Each colony had its voice heard, but the colonised peoples had none. While the colonies were each guar­an­teed equal rep­re­sen­ta­tion as states in the com­pact – re­gard­less of pop­u­la­tion – the In­dige­nous peoples went un­recog­nised and un­rep­re­sented. In­deed, con­sti­tu­tional pro­vi­sions en­sured In­dige­nous ex­clu­sion.

In 2017, the con­tem­po­rary First Na­tions of this coun­try are hav­ing their say on how the Con­sti­tu­tion might best recog­nise and pro­tect their rights and in­ter­ests. This is a cru­cial mo­ment in the story of our na­tion. It is an op­por­tu­nity to right a great wrong.

By the time this is­sue of the Monthly is printed, the di­a­logues will have cul­mi­nated in a con­sti­tu­tional con­ven­tion at Uluru. If Red­fern is the po­lit­i­cal cap­i­tal of black Aus­tralia, then Uluru is our spir­i­tual cen­tre. First Na­tions lead­ers from across the coun­try will have met to form a con­sen­sus po­si­tion on the con­sti­tu­tional re­forms they want.

There is no more fit­ting lo­ca­tion. If Uluru suc­ceeds, it will be the op­por­tu­nity for all Australians to hear the voice of the First Na­tions. And for real re­form to en­sue.

I write these words with Uluru still in prospect. The themes that have come out of the di­a­logues are, how­ever, clear.

All agree that the sys­tem is not work­ing and needs re­form.

This is why ev­ery di­a­logue re­jected a min­i­mal­ist or purely sym­bolic model in favour of prac­ti­cal and sub­stan­tive re­form. The di­a­logues de­ci­sively demon­strated that In­dige­nous Australians will not ac­cept to­kenism and will ac­tively op­pose any min­i­mal­ist “politi­cian’s model” that might be pushed through against their wishes. Michael Madi­gan of the Courier-Mail aptly cap­tured the black­fella view there is zero ap­petite for Kum­baya-singing sen­ti­men­tal­ism. Peo­ple want real re­form, or noth­ing at all.

The idea of a con­sti­tu­tion­ally man­dated First Na­tions voice to par­lia­ment gained con­sis­tent sup­port. Black­fel­las want to be em­pow­ered in their af­fairs. They want to in­flu­ence po­lit­i­cal de­ci­sion-mak­ing about their rights and the fu­ture of their peo­ple. They want grass­roots lo­cal voices to be heard. And they don’t want any such rep­re­sen­ta­tive in­sti­tu­tion abol­ished at gov­ern­ment whim.

Agree­ment-mak­ing is also an im­por­tant pri­or­ity. Ev­ery di­a­logue saw con­tem­po­rary agree­ment-mak­ing as a mech­a­nism for forg­ing stronger part­ner­ships be­tween First Na­tions and gov­ern­ments. Many felt Aus­tralia would ben­e­fit from a truth and rec­on­cil­i­a­tion process to help re­solve the past and bind up the wounds of his­tory.

The Uluru con­ven­tion, on 27 May, will co­in­cide with the 50th an­niver­sary of the 1967 referendum. That was Aus­tralia’s

most suc­cess­ful referendum, pass­ing with a 90.77% “Yes” vote, and pro­vides im­por­tant lessons for achiev­ing con­sti­tu­tional recog­ni­tion to­day.

In 1967 Australians voted to shift In­dige­nous af­fairs from be­ing solely a state mat­ter to be­ing a Com­mon­wealth re­spon­si­bil­ity. The Com­mon­wealth even­tu­ally used its new power to give leg­isla­tive recog­ni­tion to some In­dige­nous rights, en­abling leg­is­la­tion such as the Na­tive Ti­tle Act in 1993. Australians also voted to re­move sec­tion 127 of the Con­sti­tu­tion so that In­dige­nous peo­ple could be counted in the cen­sus.

But 1967 only re­moved the neg­a­tive con­sti­tu­tional ex­clu­sions of In­dige­nous peo­ple. It did not im­ple­ment any pos­i­tive recog­ni­tion or pro­tec­tion of rights. The 1967 re­forms left the job half un­done.

The trans­fer of power to the Com­mon­wealth to leg­is­late with re­spect to In­dige­nous af­fairs in­cluded the power to dis­crim­i­nate. It in­cor­po­rated Abo­rig­i­nal and Tor­res Strait Is­lan­der peoples within the am­bit of the dis­crim­i­na­tory race power, which was in­serted by the drafters to con­trol and ex­clude the “in­fe­rior” and “coloured” peoples. In­dige­nous in­clu­sion un­der the race power in 1967 en­abled pos­i­tive leg­is­la­tion in re­la­tion to In­dige­nous peoples, but any leg­isla­tive recog­ni­tion of In­dige­nous rights can just as eas­ily be leg­is­lated away. Apart from the race power, the Com­mon­wealth can also still use its many other pow­ers to ef­fect dis­crim­i­na­tion. The North­ern Ter­ri­tory In­ter­ven­tion re­lied on sec­tion 122 – the ter­ri­to­ries power.

Cru­cially, the 1967 re­forms did not in­clude any con­sti­tu­tional guar­an­tee that In­dige­nous peo­ple would be treated more fairly than in the past. The con­sti­tu­tional prob­lem left un­re­solved by 1967 is demon­strated by the fact that the Racial Dis­crim­i­na­tion Act – which is sup­posed to pro­tect all Australians from racial dis­crim­i­na­tion – has been sus­pended three times, each time only in re­la­tion to In­dige­nous peo­ple. Our na­tion has un­fin­ished busi­ness. It is the un­re­solved ten­sion of 1967 that pro­pels the drive for con­sti­tu­tional recog­ni­tion and re­form to­day.

There are three im­por­tant lessons to be drawn from 1967. Les­son one: con­sti­tu­tional rights clauses are not a po­lit­i­cally vi­able so­lu­tion.

In the lead-up to the 1967 referendum, Lib­eral MP Billy Went­worth pro­posed a con­sti­tu­tional guar­an­tee of racial non-dis­crim­i­na­tion. Went­worth an­tic­i­pated the prob­lem we still grap­ple with to­day: what is the best, and most po­lit­i­cally vi­able, way to con­sti­tu­tion­ally recog­nise and pro­tect In­dige­nous rights? A qual­i­fied In­dige­nous power was also sug­gested. How­ever, nei­ther form of con­sti­tu­tional guar­an­tee was adopted. The gov­ern­ment wor­ried that such amend­ments would cre­ate le­gal un­cer­tainty and risk par­lia­ment’s laws be­ing struck down by the High Court, thus un­der­min­ing par­lia­men­tary supremacy. The pro­posal fiz­zled be­cause politi­cians could not be per­suaded to give up any power to the High Court.

That didn’t de­ter ad­vo­cates (me in­cluded) from pur­su­ing the same re­form in 2012. The Ex­pert Panel on Con­sti­tu­tional Recog­ni­tion of In­dige­nous Australians pro­posed a racial non-dis­crim­i­na­tion clause again, to the im­me­di­ate ire of the pro­lific anti–bill of rights ad­vo­cates, who de­rided it as a “one-clause bill of rights”.

Notwith­stand­ing this ob­vi­ous stum­bling block, in 2015 a joint se­lect com­mit­tee chaired by Lib­eral MP Ken Wy­att pro­posed three ver­sions of a racial non-dis­crim­i­na­tion clause. A few weeks later Wy­att told the Aus­tralian news­pa­per that such a clause could not suc­ceed be­cause it was al­ready be­ing op­posed within his own party. There was noth­ing sub­stan­tive left in the joint se­lect com­mit­tee’s pro­posal once the nondis­crim­i­na­tion clauses were dumped.

My com­men­tary for the Monthly in Au­gust 2015 told the story of this aban­don­ment.

The les­son is now learnt. Any kind of ju­di­cially ad­ju­di­cated rights clause is un­likely to win the wide­spread po­lit­i­cal sup­port nec­es­sary for a referendum. Just look at the his­tory of con­sti­tu­tional re­form. All past at­tempts at im­ple­ment­ing new con­sti­tu­tional rights clauses have failed due to lack of po­lit­i­cal sup­port. Aus­tralia can­not im­ple­ment a fed­eral bill of rights, let alone a con­sti­tu­tional rights clause.

Les­son two: don’t get duped by slick slo­gans.

In the lead-up to the 1967 referendum, In­dige­nous ad­vo­cates and their al­lies did a great job cam­paign­ing and drum­ming up pub­lic sup­port, but there were not enough le­gal ex­perts keep­ing an eye on the con­sti­tu­tional draft­ing, to en­sure In­dige­nous peo­ple were not be­ing duped into ac­cept­ing sub­stan­dard re­form.

The ex­pec­ta­tions of 1967 out­shone its re­sults. The slo­gans of the time in­di­cated that the referendum was about pro­tect­ing In­dige­nous rights and achiev­ing equal­ity. In re­al­ity, the 1967 referendum did not achieve those things. It only con­ferred upon par­lia­ment the power to recog­nise and pro­tect In­dige­nous rights if it chose to. It didn’t guar­an­tee our rights or com­pel fair treat­ment.

In­dige­nous Australians are more em­pow­ered and ed­u­cated now than in the 1960s. We have lawyers, judges and aca­demics among us who can prop­erly as­sess any pro­posed amend­ments, but we must still be wary.

Many at the di­a­logues pointed out the mis­lead­ing na­ture of the “racism out, recog­ni­tion in” slo­gan, prop­a­gated by poll­sters and cam­paign­ers. The slo­gan at­tempts to disguise min­i­mal­ism as sub­stan­tive change, but black­fel­las are not buy­ing it. In 2017, we know we have to pay more at­ten­tion to the ac­tual amend­ments than to slick slo­gans and jin­gles.

Les­son three: politi­cians must ne­go­ti­ate with the First Na­tions in good faith.

In 1967 there was no for­mal ne­go­ti­a­tion process to syn­the­sise In­dige­nous re­form as­pi­ra­tions on the one hand with the con­cerns of Aus­tralian po­lit­i­cal lead­ers across the po­lit­i­cal spec­trum on the other. Back then, In­dige­nous peo­ple had their say through their ad­vo­cacy and ac­tivism, but at the end of the day the politi­cians de­cided on the way they wanted to pro­ceed and the re­forms they wanted to pur­sue. With­out a for­malised ne­go­ti­a­tion process, In­dige­nous best in­ter­ests were over­looked and the re­form im­ple­mented was not as good as it could have been. Nor did it solve the fun­da­men­tal prob­lem, which is why we are still dis­cussing con­sti­tu­tional re­form.

If we want to re­solve this is­sue once and for all, we must do bet­ter than 1967. First Na­tions of Aus­tralia must be af­forded a for­mal op­por­tu­nity to sit down with Aus­tralian par­lia­men­tar­i­ans of all par­ties, to ne­go­ti­ate a pack­age of mean­ing­ful re­forms, ca­pa­ble of win­ning the sup­port of the Aus­tralian peo­ple.

This ne­go­ti­a­tion must be con­ducted in good faith. It must be con­ducted with the grav­i­tas and hon­our that be­lated con­sti­tu­tional ne­go­ti­a­tions de­serve.

The bet­ter an­gels of peoples and na­tions are ever present even if un­seen, and even in times when our ran­corous ones are more vis­i­ble. Bet­ter an­gels need to be con­jured from the fog of fear and cyn­i­cism. An­gel-con­jur­ing re­quires lead­er­ship. If Aus­tralian lead­ers can con­nect our po­lit­i­cal heads with our spir­i­tual heart, we will all be richer for it.

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