One Burn­ing Ques­tion Com­ment by Me­gan Davis

The Monthly (Australia) - - APRIL 2018 - Com­ment by Me­gan Davis

Early in the new year, Aus­tralia em­braced ’90s nos­tal­gia. A bloke called Turn­bull was talk­ing about a vote on the repub­lic is­sue, and, along­side retweets of the retro rugby league Win­field Cup ac­count, ’90s plat­i­tudes such as “The sys­tem is bro­ken. Let’s fix it” ap­peared in my Twit­ter timeline. And with con­sti­tu­tional recog­ni­tion of Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ple un­re­solved and the ink barely dry on the govern­ment’s re­jec­tion of the Uluru re­forms, repub­li­cans were straight out of the gates declar­ing an Aus­tralian repub­lic was the next ref­er­en­dum. Talk about back to the fu­ture. For those not au fait with the re­la­tion­ship be­tween the repub­li­can move­ment and First Peo­ples in 1999, the two move­ments were very sep­a­rate. The least glam­orous part of Aus­tralian re­pub­li­can­ism has al­ways been the ques­tion of Abo­rig­i­nal sovereignty. And it is yet to be rec­on­ciled. “Nos­tal­gia” is de­rived from the Greek word nós­tos, or home­com­ing. Ever since I stud­ied Homer’s epic The Odyssey at the Univer­sity of Queens­land in the repub­li­can ’90s, the con­cept of nós­tos and the un­fin­ished busi­ness of the Aus­tralian state with the First Na­tions has of­ten oc­cu­pied my mind. For In­dige­nous con­sti­tu­tional recog­ni­tion has been an epic jour­ney and there is no home­com­ing in sight. The recog­ni­tion project has had many it­er­a­tions since John Howard’s pream­ble to the Con­sti­tu­tion in 1999: Ju­lia Gil­lard’s ex­pert panel in 2011, John An­der­son’s recog­ni­tion re­view (2014), Ken Wy­att and Nova Peris’s joint se­lect par­lia­men­tary com­mit­tee (2012–15), and Turn­bull’s Ref­er­en­dum Coun­cil (2015– 17). Four state-sanc­tioned, tax­payer-funded mech­a­nisms in six years. And with the an­nounce­ment of an­other joint se­lect par­lia­men­tary com­mit­tee this year, we will have had five pro­cesses in seven years. We are ex­hausted. We would like to come home. The Uluru State­ment from the Heart is the way home. Make no mis­take, I was a kid Repub­li­can: in 1986, at St Joseph’s To­bruk Me­mo­rial School in Been­leigh, a de­bate on whether or not the Queen should be our head of state had me hooked. As a child of the un­der­class, a grand­daugh­ter of a Wol­lon­gong wharfie, and the daugh­ter of a mother who had re­li­giously read Henry Law­son to us, I have the Aus­tralian repub­li­can tradition cours­ing through my veins. It be­came an ado­les­cent pas­sion of mine. Years later, I was a United Na­tions Fel­low at the Of­fice of the High Com­mis­sioner for Hu­man Rights in Geneva when the repub­lic ref­er­en­dum was held. I voted at the Aus­tralian Mis­sion to the United Na­tions and posed out the front with my mates, fel­low Aussie in­terns

Lizzie and Evie. I cried when the vote was lost and I was an­gry. But I have not main­tained the rage. Not long after the ref­er­en­dum vote I spoke to many el­ders and lead­ers and I dis­cov­ered that I was prob­a­bly the only Abo­rig­i­nal per­son who voted “Yes”. ATSIC lead­ers visit­ing Geneva would say that an Aus­tralian repub­lic could not come be­fore ad­dress­ing un­fin­ished busi­ness. Oth­ers said be­com­ing a repub­lic would cede our sovereignty. Abo­rig­i­nal lead­ers were sim­ply ap­palled that Howard, know­ing the key cul­tural au­thor­ity, the land coun­cils, and ATSIC had re­jected the sin­gle line of In­dige­nous recog­ni­tion in the pro­posed new pream­ble, had pro­ceeded with it re­gard­less. It was the 1999 ref­er­en­dum that made me in­ter­ested in this ques­tion: can you be­come a repub­lic be­fore you ad­dress un­fin­ished busi­ness? It is in part why I be­came a con­sti­tu­tional lawyer. Many peo­ple in the late ’90s and early ’00s would say to me, “Get a repub­lic up first and deal with In­dige­nous is­sues later.” But as Aus­tralian his­to­rian Mark McKenna skil­fully ex­pounded in his 2004 book This Coun­try: A Rec­on­ciled Repub­lic?, the mat­ter isn’t that sim­ple: “It is nei­ther ra­tio­nal nor just … to re­place the sovereignty of the crown with­out ad­dress­ing the con­sti­tu­tional po­si­tion of Abo­rig­i­nal Aus­tralians.” The Crown, the monarch, a repub­lic and Abo­rig­i­nal sovereignty were all is­sues raised by di­a­logue par­tic­i­pants. The repub­lic is an Abo­rig­i­nal is­sue. McKenna’s pre­scient view came to the fore last year when my kid hero Mal­colm Turn­bull, the face of ’90s re­pub­li­can­ism, the man who in­spired me to pur­sue con­sti­tu­tional law, cold-heart­edly re­jected the out­come of a de­lib­er­a­tive process con­ducted in the great repub­li­can tradition. The cul­mi­na­tion of that civic en­gage­ment, an Abo­rig­i­nal and Tor­res Strait Is­lan­der con­ceived and de­signed so­lu­tion to our pow­er­less­ness, a con­sti­tu­tion­ally en­shrined Voice to Par­lia­ment, was re­jected on the ba­sis of a most in­sipid con­trivance: that it would be seen as a third cham­ber of par­lia­ment. Not long after the re­jec­tion of the Voice, Turn­bull seem­ingly en­dorsed the idea of a repub­lic ref­er­en­dum or at least a postal vote. The en­thu­si­asm of Turn­bull for this struc­tural re­form and not Uluru struc­tural re­form stung. Over the years, other things have sur­passed my ado­les­cent in­ter­est in an Aus­tralian repub­lic. The is­sues fac­ing my peo­ple – dis­ad­van­tage, the lim­i­ta­tions of the right to self-de­ter­mi­na­tion for women, child re­movals, the chal­lenges of lib­eral demo­cratic gov­er­nance – are more press­ing. Whether the head of state is a for­eigner makes no dif­fer­ence to com­mu­ni­ties dec­i­mated by the Com­mon­wealth’s ap­palling pol­icy set­tings or to the fam­i­lies of our young peo­ple lan­guish­ing in youth de­ten­tion or child pro­tec­tion. I am un­moved by te­dious snark about royal wed­dings. Tales of Camilla seek­ing a long-haul flight on tax­payer coin elicit no out­rage given the amount of tax­payer money wasted on the true “In­dige­nous in­dus­try”: Com­mon­wealth pub­lic ser­vants who lord it over vul­ner­a­ble Abo­rig­i­nal com­mu­ni­ties.

Aus­tralian repub­li­cans like to talk a lot about val­ues: merit, the fair go and ac­tive cit­i­zen­ship. So, let me tell you a very Aus­tralian story. The first part of it comes from A Dump­ing Ground: A His­tory of the Cher­bourg Set­tle­ment by Queens­land his­to­rian Thom Blake:

In the early months of 1901, as white Aus­tralians were un­der­go­ing their rite of pas­sage into na­tion­hood, an­other group of Aus­tralians were also par­tic­i­pat­ing in a rite of pas­sage – but of a quite dif­fer­ent kind. In the Bur­nett district of south-east Queens­land, rem­nants of the Wakka Wakka tribe were be­ing rounded up and dumped on a re­serve on the banks of Baram­bah Creek. From camps on the fringes of towns and sta­tion prop­er­ties, they had been forced onto an Abo­rig­i­nal set­tle­ment es­tab­lished os­ten­si­bly for their care and pro­tec­tion. For the Wakka Wakka, their “rite of pas­sage” was not into na­tion­hood or in­de­pen­dence but into in­sti­tu­tion­al­i­sa­tion and dom­i­na­tion. The two rit­u­als were di­a­met­ri­cally op­posed.

The bru­tal­ity of the Aus­tralian state to­wards Abo­rig­i­nal peo­ple is a part of those val­ues that im­bue the con­sti­tu­tional sys­tem to this day. I’m a repub­li­can who, as a mem­ber of the Ref­er­en­dum Coun­cil, de­signed and led con­sti­tu­tional di­a­logues that en­cour­aged the civic de­lib­er­a­tion of Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples on con­sti­tu­tional recog­ni­tion. It was the first such process ever un­der­taken in Aus­tralian his­tory. (First Na­tions were ex­cluded en­tirely from the con­sti­tu­tional con­ven­tion de­bates of the 1890s.) Yet the tenets of this very repub­li­can process were ruth­lessly re­jected by the Aus­tralian govern­ment.

The rea­son­ing should be trou­bling for all repub­li­cans. Turn­bull re­jected Uluru for all the rea­sons he en­dorses the repub­lic. The pref­er­ence of the po­lit­i­cal elite is for min­i­mal­ism. It is driven by po­lit­i­cal timid­ity. Aus­tralia’s very dif­fi­cult ref­er­en­dum record means that re­formists now shrink to match the po­lit­i­cal con­ser­vatism of the Aus­tralian state. It is true only eight out of 44 pro­posed amend­ments have been suc­cess­ful. It is true that for the most part they had bi­par­ti­san sup­port. But it has been 41 years since a ref­er­en­dum last suc­ceeded; Mal­colm Fraser was prime min­is­ter, “Don’t Cry For Me Ar­gentina” was num­ber one in Aus­tralia, and St Ge­orge and Par­ra­matta drew in the rugby league grand fi­nal. Forty years is a long time in a na­tion’s de­vel­op­ment. There has been no ref­er­en­dum held in the era of so­cial me­dia. The old adage that, by and large, Aus­tralians trust and de­fer to politi­cians’ judge­ment on ref­er­en­dum ques­tions may not hold up to scru­tiny.

The pref­er­ence of the po­lit­i­cal elite is for min­i­mal­ism. It is driven by po­lit­i­cal timid­ity

Al­though po­lit­i­cal elites say no model of re­pub­li­can­ism has been en­dorsed, the truth is that the cam­paign has par­al­lels with In­dige­nous recog­ni­tion. The ab­sence of a model means that the si­lence on sub­stance is filled with a cam­paign tout­ing what de­cep­tively looks like in­nocu­ous clichés and vague yet harm­less con­tours of the re­form. But with the pas­sage of time, in the ab­sence of the proper in­put of the repub­li­can cit­i­zen, the con­tours of that cam­paign be­come too hard to dis­rupt. The noise from those who oc­cupy that space – and that is al­most al­ways po­lit­i­cal elites – will be over­whelm­ing well be­fore cit­i­zens are truly en­gaged. Uluru showed how out of touch the po­lit­i­cal elite were with the In­dige­nous demos.

It can hap­pen quickly with cam­paigns. I read one repub­li­can mes­sage that Aus­tralia is one of the only na­tions in the world with a con­sti­tu­tion that ac­tively dis­crim­i­nates against its own cit­i­zens. The Recog­nise cam­paign used a sim­i­lar mes­sage. I thought for a mo­ment they were talk­ing about Abo­rig­i­nal peo­ple and the race power. But they were re­fer­ring to the head of state. This jars for a peo­ple whose only op­por­tu­nity for eco­nomic de­vel­op­ment through na­tive ti­tle was di­min­ished by a Com­mon­wealth head of power that per­mit­ted ad­verse dis­crim­i­na­tion on the grounds of race. Th­ese were the big civic ques­tions that oc­cu­pied the minds of Abo­rig­i­nal and Tor­res Strait Is­lan­der di­a­logue par­tic­i­pants. Ac­tual le­gal prob­lems af­fect­ing peo­ple’s well­be­ing and cul­ture. It makes me ques­tion whether the Aus­tralia on the other side of a suc­cess­ful ref­er­en­dum for a repub­lic is the same as the Aus­tralia on this side. Lip­stick on a pig. And some signs are wor­ry­ing. I worry when I hear peo­ple sug­gest, as they did in the ’90s, that First Na­tions in­put into a repub­lic could be an Abo­rig­i­nal word for “pres­i­dent” or dots on a new flag. I worry when I hear First Na­tions de­ployed as a rhetor­i­cal de­vice to aid this re­form that has no clearly enun­ci­ated ben­e­fit for our strug­gle. There is also noth­ing more tire­some than the in­vok­ing of the “old­est liv­ing cul­tures” as an ac­ces­sory to an un­re­lated re­form. I worry when I hear peo­ple use ’90s mes­sag­ing about Abo­rig­i­nal pro­cliv­ity for sym­bol­ism or Abo­rig­i­nal recog­ni­tion in a pream­ble. This nar­ra­tive is an­ti­quated. The First Na­tions con­sti­tu­tional di­a­logues su­per­vised by the Ref­er­en­dum Coun­cil re­jected a state­ment of recog­ni­tion or any­thing like it in a pream­ble. Re­jected. If Uluru had zero im­pact on Aus­tralian repub­li­cans, how can we rely on the re­as­sur­ance of the po­lit­i­cal elite who say, “Let’s get a repub­lic up and we will deal with your is­sues later.” It ain’t gonna hap­pen. You aren’t com­pelled to lis­ten to us now; you won’t be com­pelled to lis­ten after. This is the tor­ment of our pow­er­less­ness. In 2003, Gatjil Djer­rkura, a Wan­gurri man of the Yol­ngu peo­ple and a for­mer ATSIC chair­man, wrote:

It is time for the Aus­tralian peo­ple to be­gin a new de­bate, one in which the repub­lic and rec­on­cil­i­a­tion are not seen as sep­a­rate move­ments, but move­ments which are closely re­lated. De­spite my ef­forts as chair­man of ATSIC, and the ef­forts of many other in­dige­nous lead­ers, many mem­bers of the repub­li­can move­ment pre­ferred to “go it alone”. They saw rec­on­cil­i­a­tion as a dif­fer­ent is­sue from the repub­lic, in­sist­ing that a repub­lic was lit­tle more than the in­stal­ment of a new head of state. But, to my mind, this ap­proach failed to an­swer one burn­ing ques­tion – what kind of repub­lic do we want, a rec­on­ciled repub­lic or a repub­lic that re­peats the in­jus­tices, er­rors and omis­sions of the con­sti­tu­tional monar­chy?

This must be the driv­ing ques­tion of a repub­lic re­form. While Gatjil goes on to ex­tol the virtues of sym­bol­ism and a pream­ble, 15 years later the Abo­rig­i­nal ap­petite for sym­bol­ism is very low. In the in­ter­ven­ing pe­riod ATSIC was abol­ished, the NT In­ter­ven­tion oc­curred, com­mu­ni­ties have been torn apart by the In­dige­nous Ad­vance­ment Strat­egy, and the on­go­ing cost-shift­ing of the Com­mon­wealth post 1967 con­tin­ues un­abated, while a gauchely ti­tled “re­fresh” of Clos­ing the Gap her­alds a new era of buck-pass­ing on re­spon­si­bil­ity for In­dige­nous af­fairs. Any il­lu­sions that in 2018 we will set­tle for a state­ment of recog­ni­tion in a repub­li­can con­sti­tu­tion in lieu of struc­tural re­form should be im­me­di­ately dis­avowed. As a repub­li­can I’m dis­in­clined to sup­port a “re­pub­li­can­ism” that shrinks it­self. It rep­re­sents an old Aus­tralia. Too scared to dream big. Too scared to sell the big pic­ture to the peo­ple. Be­ing afraid of the con­sti­tu­tional amend­ment process in sec­tion 128 is to be scared of the demos. That’s not the kind of Aus­tralia I want to live in. And we should not be en­shrin­ing that timid­ity in the Con­sti­tu­tion. For Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples, the stakes are high. We run the very real risk of a repub­lic that ren­ders the First Peo­ples in­vis­i­ble in the same way the con­sti­tu­tional monar­chy did. And when we ob­ject they will blithely say, “That was un­der the old sys­tem, this is a new Aus­tralia.” And for many mob, who con­tinue to en­dure hu­mil­i­at­ing poli­cies im­bued with Aus­tralian val­ues from the pro­tec­tion era, puni­tive, con­trol­ling, pa­ter­nal­is­tic, the morn­ing after a suc­cess­ful ref­er­en­dum noth­ing will change. With­out cor­rect­ing the course, there is no home­com­ing yet for we who are ex­iled from our own coun­try. There is an op­por­tu­nity here for the repub­li­can move­ment, though. Don’t go it alone. At Uluru we in­vited you to walk with us in a move­ment of the Aus­tralian peo­ple for a bet­ter fu­ture.

We run the very real risk of a repub­lic that ren­ders the First Peo­ples in­vis­i­ble in the same way the con­sti­tu­tional monar­chy did

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