That idea surfaced in 2016. In 2011, I merely grasped more fully the moral, philosophical and political implications of the fact that the Constitution of 1901 created Australia.
The second thing I learned was crucial in understanding the challenge of Indigenous constitutional recognition: the Constitution is all about power.
The Constitution is a power-sharing compact by which the disparate colonies agreed to unite as a single federation. It is a unity pact, or treaty, containing the rules and processes by which the parties agreed to coexist and work together productively and peacefully in the new nation. This compact recognises the pre-existing political communities—the colonies, now the states—and guarantees them appropriate representation and rights in the system. All except one pre-existing community, however: the Indigenous original owners of the land were left out of the deal.
In the 1800s, when the colonial founding fathers negotiated how power was to be distributed in the new nation, Indigenous peoples were not included in discussions. There were no First Nations representatives at the constitutional conventions, and the Constitution produced contained clauses explicitly excluding them.
Power was shared out, and Indigenous people got none. The Constitution, for Indigenous peoples, creates a position of perpetual powerlessness.
Anthropologist W.E. Stanner wrote about the ‘torment of powerlessness’ that besets Indigenous peoples in all their dealings with government. The source of that powerlessness in the most fundamental sense is the Australian Constitution. It has presided over laws denying Indigenous property rights, denying equal wages, denying equal voting rights, controlling who they could marry and where they could live—and it denied them a fair say in all these policy decisions. These laws were all possible because the Constitution allowed them. How might the Constitution empower Indigenous peoples in such decisions? This is the fundamental problem Indigenous constitutional recognition seeks to fix.
The third thing I learned, which follows on from the second, was that Australia’s Constitution does not treat everyone equally.
Where most Western liberal democracies have a bill of rights, including some kind of equality before the law or non-discrimination guarantee, Australia’s Constitution has the opposite: racially discriminatory clauses. The ‘race power’ enables Parliament to enact discriminatory race-based laws (ours is the only Constitution in the world, as far as I’m aware, that gives Parliament such a power). Section 25 contemplates the states banning races from voting. As perusal of the constitutional convention debates reveals, these clauses were inserted by the colonial drafters with the intent of controlling and excluding the ‘inferior’ and ‘coloured’ peoples.
How was it I’d never realised our Constitution conferred upon Parliament the theoretical power to stop Aborigines from voting, prevent Asian people from buying houses, or disallow Africans from living in certain areas? I went through the discriminatory possibilities, some of which, I discovered, had in fact been past policy. While the days of the White Australia policy were behind us and the ‘two Wongs don’t make a white’–style racist political rhetoric was (mostly, thankfully) a thing of the past, it seemed extraordinary that the Constitution had not caught up with the nation’s embrace of multiculturalism, or the fact that ‘race’ was now acknowledged as an outdated, pseudo-scientific concept.
I learned that the 1967 referendum only fixed part of the problem. In that referendum, Indigenous Australians were finally counted in the census, and the Commonwealth Parliament obtained its power to legislate for Indigenous affairs (the exclusion of Indigenous people from the race power was removed, and this power became exclusively used for Indigenous affairs legislation—prior to 1967 it was never used). But that referendum did not implement any constitutional rules to ensure Indigenous people would be treated more fairly than in the past. It gave Parliament the power to make laws about Indigenous people, but didn’t guarantee Indigenous people a fair say in those laws. And it did not ensure equality before the law for all Australians. Indigenous people suffered as a result.
The fourth thing I learned, which is obvious given insights about Indigenous constitutional powerlessness and inequality, is that Indigenous Australians have always sought practical and substantive constitutional reform and recognition to empower them in their relationship with government. Constitutional reform to ensure fairer treatment. It has never been just about symbolism for Indigenous people.
From William Cooper’s 1937 letter to King George VI, which asked for Aboriginal representation in Parliament, to the Yolngu bark petitions in 1963 asking for a fairer hearing in decisions made about them and their land, to the 1988 Barunga Statement, which asked for an Indigenous representative body and a treaty, Indigenous advocates had never asked for a mere symbolic statement or preamble. As Yolngu elder Galarrwuy Yunupingu put it, Indigenous advocates were seeking ‘serious constitutional reform’.2
In 1999, then Liberal prime minister John Howard, evidently oblivious to this history of Indigenous advocacy for substantive constitutional recognition, ran a referendum to insert a new symbolic preamble merely mentioning Indigenous peoples, together with a question on the republic. The symbolic mention was opposed by many Indigenous groups, but Howard went ahead anyway. Both referendum propositions failed abysmally, leaving the question of Indigenous recognition open for future agitation.
Constitutional recognition was put on the agenda again by Howard in 2007, then by Kevin Rudd, then by Gillard with the formation of the Expert Panel. It would be kept on the agenda by future Liberal prime ministers Tony Abbott and Malcolm Turnbull. Australia has been trying to answer this question for a long time.
But to find the right solution, you first need to correctly characterise the problem. That’s what I tried to do at the start of 2011. I looked at the problem from all angles, seeking to understand every contour. Hoping to crack the right answer.
Do you ever get that feeling of brain salivation? That achy feeling in the frontal lobes when confronted with the juiciest of problems? Problems deliciously complex and ripe for solving. The feeling of neurons firing and new connections forming, brain cells pulsating with fresh blood and new facts. Your mind widening to see the world anew.
I remembered that feeling from some twelve years prior, studying university-level philosophy as an extension subject in my final year of high school. I hadn’t felt it in my years as an actor.
But I felt it again when confronted with the challenge of constitutional reform at Cape York Institute. The problem went to the core of our nation. When I saw its enormity, I couldn’t look away.
It wasn’t all excitement and mental stimulation. I was also having a crisis of confidence. I had a growing appreciation of the problem, but was totally unsure about the appropriate solution.
Each day I’d lope up Sheridan Street in my floppy sandals, arriving with frizzed hair and sweat droplets hanging off my nose. I’d dive in: reading, taking notes, writing. I started churning out research and ideas.
I had to make it up as I went. There was little guidance on how to proceed, and the role hadn’t existed before I arrived. Plus I’d never worked in policy before, let alone in law. I’d temped as a receptionist and data entry clerk to supplement my acting income. I’d been a check-out chick at BI-LO in Ringwood, and did a short stint as a waitress at an Indian restaurant before quitting due to harassment from the all-male staff. But this was my first ‘proper’ job. I could draw only on my skills as a student. I thought of the people of Aurukun and their structural disempowerment, and felt totally inept.
Noel had given me his PowerPoint slide deck from several years prior. It contained ideas about cultural rights, structural reform and an equality guarantee. I also had his extraordinary letters to John Howard urging substantive constitutional recognition. In a letter dated 10 October 2007, Noel argued for a set of structural reforms, including a Rights and Responsibilities Commission and an Indigenous representative body to interface with the Australian Parliament.<
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I was desperate for feedback, but Noel was so busy with other work that whatever I was producing he usually wasn’t reading. When he did, the ideas were summarily dismissed as ‘incoherent’. And sometimes, even without his reading them: ‘Shireen’s first cut of the argument is not compelling (I have yet to read it, but this is my guess)’, one email stated confidently. These dismissals would often come in front of staff and heads of policy, to my repeated mortification. It helped that I was used to rejection and criticism from my acting days, but as a former top student it was still a shock. Suddenly I didn’t have all the answers.
I was excruciatingly nervous in Noel’s silent presence. I’d babble uncontrollably and he’d press one eye, as if in intellectual agony, or close them both in long-suffering meditation. I was impatient and worried I was terrible at my job. Noel began to bring in fellow CYI staff member John, a philosopher and Aboriginal language expert, to join in on the awkwardness with us. We became a trio in silence. Interminable pauses. Sustained eye-poking. Heartfelt sighs. I’d stare at my blank notepaper attentively, waiting, wanting to stab myself in the head with my pen to make it stop.
Then occasionally the silence would be broken by intense philosophical conversations. Conversations about nomenclature and first principles: nation-states, nations, peoples, and the differences between them. John was passionate about Aboriginal language and culture. I’d argue the case for an equality guarantee in the Constitution—this, I’d decided, was the most important reform. John would argue for cultural and language recognition and retention.
Our ‘dialectical tension’, as Noel described it, was crucial in hammering out our eventual policy position. There were many emails exchanged, as well as face-to-face conversations. (John’s and Noel’s emails would open with a Guugu Yimithirr greeting, Yubalay or Wanhdharra. Eventually I retaliated with a Namaste and a quip in Hindi, but this only further excited John, who promptly tried to translate it.)
Noel would sit as a kind of umpire overseeing our debate, keeping a watchful eye on the synthesis emerging out of the creative tension between our competing viewpoints. John and I would thrash it out, and Noel would intervene to give direction. He liked this dynamic, I came to learn: the three-way intellectual exchange. The robust push-and-pull that could give rise to exciting ideas. That might uncover the ‘radical centre’.
Eventually we settled on what was, in a sense, our first attempt at a ‘radical centre’ position on constitutional recognition—an amalgamation of the dual important principles of equality and cultural recognition: removal of the race clauses, appropriate replacement of the race power, a languages recognition clause, and an equality guarantee in the Constitution.
An equality guarantee—or racial non-discrimination clause—would be the key substantive reform. This guarantee would empower Indigenous peoples to challenge Parliament through the courts when it imposed discriminatory top-down policies and laws. It was the game-changer, the power-shifter. I felt it was right and just. And equality was a principle you could sell.
Having agreed on a robust and balanced package of constitutional reforms, we then divvied up the writing of the policy paper among the three of us.
While these ideas were being nutted out, I travelled around with Noel to the Expert Panel meetings, which were long and bureaucratic.
Mark Leibler, the successful Jewish-Australian lawyer and founding partner of Arnold Bloch Leibler, and Patrick Dodson, former Catholic priest, Indigenous activist and the well-known ‘father of reconciliation’, were the co-chairs of the panel. Around the table sat the formidable Professor Marcia Langton, the up-and-coming constitutional law expert and human rights guru Professor Megan Davis, and a host of other players—Mick Gooda, then Aboriginal and Torres Strait Islander Social Justice Commissioner; Fred Chaney, former Aboriginal affairs minister for the Liberal Party; Henry Burmester, former chief general counsel in the Australian Government Solicitor; and other influential individuals. Burmester represented the government in the seminal Hindmarsh Island bridge case, which highlighted the constitutional vulnerability of Indigenous rights.
Then there was Noel, who would often arrive late, like a grumpy rock star. I’d trundle awkwardly behind him, not knowing where to stand or sit. Officious discussion would ensue. Noel would press his eye, as if hoping to poke it out (I was pleased I wasn’t the only one who prompted the eye-poking). Occasionally he’d sigh noisily.
For the first few meetings, it was all process. The players scoped each other out. No one spoke up about what they thought the constitutional reforms should be. As the months progressed there was more substantive discussion. Davis shyly offered well-attuned academic insights from an international human rights law perspective, drawing on her extensive scholarship. I could see she was an intelligent and impressive Indigenous woman with a huge future. Langton raised her concerns regarding the race clauses in the Constitution and persuaded the room that they must be removed. She also kept watchful eye on the men, lest they become too cocky in their pronouncements. If a man repeated an idea first raised by a woman who might have been ignored (as is often the way in such meetings), Langton would call it out. I’d watch her twitch and shift in her chair, trying to contain her feminist rage. Then occasionally she would breathe fire and, like a dragon descending on a lamb, tear apart the unsuspecting man’s words for their hidden sexism as if extracting gizzards. I’d cheer silently from my spot up the back. Langton added necessary heat to the panel.
Pearson’s performances, by comparison, were usually understated (he too could breathe fire, but he saved it up for special occasions). Longstanding allies, he and Langton were steadfast in their friendship, sharing obvious respect and love.
When Pearson talked, the room fell silent. The panel members strained to hear him, but his words were original and insightful and always elegantly delivered. Even Leibler—who generally bossed everyone around, who barked orders at the bureaucrats and who, many years prior, was mentor and teacher to the young Pearson, who had done his legal articles at ABL—deferred to Pearson’s superior intellect. Pearson was the natural leader of the group, an astute lawyer and the most formidable brain in the room. His was a charisma and power I’d never seen.
The actor in me noted the dramatic techniques that enhanced his presence: quiet and stillness, the intense slowness of his voice, gargantuan pauses building suspense, the late entrances and slow, statesmanlike walk. When you want to capture people, you don’t shout—you whisper. You use a deep resonance to convey authority. You don’t rush—you slow down. You pull back and make the audience come to you. Pearson was a master at it. He had his audience enthralled, me included. I felt intensely proud to be his lackey.
On our travels we developed a more comfortable rapport and he became more of a mentor.
Noel summoned me to his office in Cairns one day to provide some tips on writing. I’d fancied myself a poet and author when I was little, before becoming distracted by the performing arts. Writing was the main part of my job and I was enjoying it. Noel must have noticed.
‘You need to write more like Lord Denning on the English Court of Appeal,’ he said. ‘Use shorter sentences. Tell a story, with simple language. Like this.’ He pulled up the lyrical opening of Lord Denning’s 1977 dissenting judgement in Miller v Jackson on his mobile phone. In resonant tones, he read:
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch … They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers … Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the c
ricket … Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house … So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use … The young men will turn to other things [my italics] instead of cricket.3
Here Noel paused dramatically, channelling the English lord’s fusty morality. A twinkle in his eye and an imperious raised eyebrow implied that these other things would beget society’s ruin. ‘Other things’ were sex and drugs and punk music. And illegitimate pregnancy, inevitably. ‘The whole village will be much the poorer,’ Noel concluded, ‘and all this because of a newcomer who has just bought a house there next to the cricket ground.’
I laughed, delighted at Noel’s theatrics. He was a performer, like me, and his delivery reminded me of my dad reading me stories. I thought then that I might come to like this bloke. I took his advice and strove to write simple, articulate policy papers.
Under Noel’s leadership, we conducted legal consultations and workshops with lawyers such as Gilbert and Tobin corporate law partner Danny Gilbert, University of NSW constitutional law professor and human rights expert George Williams, Professor Sean Brennan, barrister David Yarrow and my former constitutional law lecturer, Melissa Castan, plus other members of the panel, including Langton, Davis and Gooda. I went through public submissions and the panel’s consultations with Indigenous Australians and the wider public, pulling out quotes to incorporate in our developing document. I also included suggested constitutional amendments, drafted with the assistance of the lawyers.
Radical Heart Page 6