Radical Heart

by Shireen Morris

  • Adopt a racial non-discrimination clause (prohibiting racially discriminatory laws and policies)

  • Adopt a languages recognition clause (recognising Indigenous languages as the original Australian languages, and recognising English as a national language).

  The details of the drafting differed from CYI’s approach, however, and I harboured some concerns.

  The panel adopted the section 51A power with an Indigenous-specific symbolic preamble built in, rather than the general preamble CYI advocated, which recognised the three parts of Australia: the Indigenous, the British and the multicultural. The proposed section 51A incorporated recognition of Indigenous peoples’ ‘traditional lands and waters’ and their ‘culture and heritage’, and talked about the need to ‘secure the advancement’ of Indigenous peoples. Given my concerns with the limitations of native title, I was worried the use of the word ‘traditional’ might be confining on future legislative change to strengthen Indigenous property rights. I was also unsure about use of the term ‘advancement’, which I felt might be problematic politically. I didn’t succeed in getting my worries heard, however, despite efforts to raise them with Noel and, to a limited extent, Marcia.

  The panel also ultimately recommended the kind of languages clause that CYI proposed, but not without drama. Noel was champion of the clause, but at the last minute I realised the panel were about to ditch it without him realising. I whispered to him towards the end of the last meeting, urging him to advocate in defence of the clause if he wanted it in the report. He did. Forcefully.

  There was scrambling and excuses as everyone reacted to Noel’s chastisement. When the meeting was over, I in turn was chastised by those who felt the kerfuffle was my fault for not briefing Noel sooner, or properly. I was realising that part of my job was to take the brunt of people’s redirected and repressed annoyance at Noel. Most were too intimidated to tell off the great Noel Pearson, so they told me off instead. I submitted (they weren’t listening to my protestations anyway).

  The panel included the languages clause in their recommendations. They were good proposals. Thoroughly researched and consulted, carefully drafted, and supported by robust legal advice. It was a unanimous report. It felt like a win.

  We’d been naive, however. I hadn’t understood the politics. Though we’d been aware of the need to pursue a 90 per cent strategy, the proposals were ambitiously progressive. In the limited sphere of our interaction and legal advice, our approach had unwittingly come too much from the left.

  The wake-up call from the right was just around the corner.

  4

  The ‘One-Clause Bill of Rights’

  THE EXPERT PANEL report was delivered to government in January 2012. But objections to the main reform—a racial non-discrimination clause—erupted before the report was even public, via leaks. The criticism poured forth like hot bile from the demon-possessed girl in The Exorcist after her head spins round. Political prophets marched out, delivering one by one their grim indictments with the arrogant certainty of holy writ.

  The reforms seemed doomed before they’d even got going.

  Australian Catholic University vice-chancellor Greg Craven let rip in early December. Any racial non-discrimination clause was basically a ‘one-clause bill of rights’, he said in the papers. ‘It will start a mini bill of rights debate, which is a debate that has never been won.’1 Craven coined the phrase that would stick, summoning to arms Australia’s prolific anti–bill of rights brigade.

  Craven was right, I grudgingly realised later. Australia hadn’t even succeeded in implementing a legislated federal bill of rights, let alone any new constitutional rights clause. Every previous attempt at inserting new rights clauses into the Constitution had failed.

  By January, Craven’s language had become more colourful. The racial non-discrimination clause was a ‘dog’ of a proposal that was bound to create legal uncertainty, he said: ‘there’s an almost infinite category of things that can be connected to ethnicity, race or colour and if you’re saying to the High Court that you have a blank cheque to decide that something is a problem you have no idea where that provision will go’.2 By February he’d ramped it up further, writing in the Australian Financial Review that the panel’s report was ‘pathologically flawed’, the panel members had ‘suffered a fatal attack of enthusiasm’, and the recommendations were ‘reckless constitutional stupidity’.3

  Reckless constitutional stupidity? That was our year of work. I was mortified.

  Indigenous leader Warren Mundine built on the ‘dog’ metaphor and added others: the proposals were a ‘dog’s breakfast’ and a ‘lawyers’ picnic’. They went ‘a hundred steps too far’ and opened ‘a Pandora’s box’. He took aim particularly at the panel’s proposed use of the word ‘advancement’ in the proposed new section 51A. Otherwise supportive former Liberal prime minister Malcolm Fraser agreed that the term was too subjective and uncertain, and possibly paternalistic. I’d tried to warn Noel about the word before the report was finalised—he’d realised too late. But Mundine’s commentary was vicious. ‘I’m concerned about the impact the advancement clause will have on the cultural practice of taking child brides in some Aboriginal communities,’ he said. ‘Some could argue it is about cultural rights, it could be used under the advancement clause. I raised this with Tony.’4

  Child brides? Seriously?

  Tony Abbott stepped out as if on cue. This must not become a ‘one-clause bill of rights’, he cautioned. And, we should also be wary of anything that ‘might turn out to be a one-clause bill of rights’ (my italics).5 We would deal with similar lines of argument in the years to come for the different and far more modest proposal of an Indigenous voice to Parliament, which Malcolm Turnbull would facetiously warn would ‘come to be seen as a third chamber of Parliament’. I was quickly learning that it’s not just the rational fears one must fight in a referendum campaign: one has to guard against conjured ones as well. The irrational evils—the ones that don’t exist, but that people fear might one day materialise (even if out of thin air)—these are hardest to fight: like trying to punch a ghost or exorcise a demon. Logic does not defeat them. They need holy water: a generous dousing in goodwill and good faith.

  On the proposed racial non-discrimination clause, there was none to go around. Conservatives were murdering the proposal. It was relentless and unfair. For in reality, this was no ‘one-clause bill of rights’. It was a guarantee against racial discrimination, similar to that contained in Western liberal constitutions the world over.

  They didn’t cease, however. The metaphors used—a one-clause bill of rights. Dog of a proposal. A dog’s breakfast. A Pandora’s box. A lawyers’ picnic. A blank cheque. Child brides—these were all in reality variations of the same dog whistle. The message conveyed: if we give black people any legal power to challenge laws, it will lead to grave and unknown danger beyond Australia’s wildest nightmares.

  Who knew something as simple as a guarantee of equality would give rise to such vicious fearmongering? Was it really so outrageous to propose that Australia’s Constitution, our highest rulebook, should require that parliaments treat all Australians equally, without unfair discrimination on the basis of race? Was it so unthinkable that Parliament should be held accountable to this principle by the High Court, performing its constitutional role? Given the history of discrimination, particularly against Indigenous people, wouldn’t such accountability be warranted? Most other Western liberal democracies held themselves accountable to such a guarantee—the USA, Canada, South Africa, and many more—so why not us? And what did it say about Australia’s democracy when 80–90 per cent of Australians across the political spectrum supported the equality guarantee, and yet it was getting successfully vetoed by a powerful conservative elite?

  I struggled to comprehend it, but we needed bipartisan support for a successful referendum. So far we didn’t have it. The Coalition was not on board. I asked Noel what we should do. He was blunt: ‘Convince t
hem.’

  First, we tried to persuade Mundine his opposition was incorrect. He was influential and could help convince the Liberals, we thought. We invited him up to Cairns and sat around at an excruciating breakfast. Noel was interminably quiet. Mundine had flown up to see him, but Noel just wouldn’t speak.

  I didn’t know it then, but Noel was very sick, and the others around the table weren’t versed in the constitutional reform policy. Eventually, I took a stab—one of the first times I tried my hand at verbal persuasion of someone who had publicly stated an opposing view on a particular constitutional reform. I made the case to Mundine: equality. Stop racist laws. Equal rights and equal responsibilities. No more hard racism, and no more soft bigotry. Equality before the law for all Australians. You get the gist.

  When I finished Mundine was positive. ‘I agree with everything you’ve said,’ he told me and the table. Noel was hoping Mundine might take more of an active role in advocating for substantive reform, so Noel could step back and focus on his health. At least, I guess that’s what must have been happening.

  I didn’t know until later, but Noel had been diagnosed with cancer.

  In February 2012, we had a meeting with Abbott and George Brandis, the shadow attorney-general in the Liberal Party, at David Jackson QC’s Sydney chambers. In preparation, we’d sought legal advice from Jackson, and were attempting to modify the proposals to address the conservative objections. We altered the non-discrimination provision to become an ‘equality before the law’ clause, refining the CYI approach the panel had not run with. Noel hoped this would make the proposal more palatable to conservatives.

  Jackson’s advice approved our revised provision with some minor wording suggestions. He said ‘equality before the law’ could be a value that Australians could decide should be included in the Constitution, giving us ‘lofty ideals’ to aspire to. He acknowledged that inevitably litigation would follow, but what’s wrong with that? It’s part of our constitutional system. (I hadn’t yet grasped that no amount of tinkering with a racial non-discrimination clause could address the fundamental conservative objection about giving the High Court power to veto Parliament’s discriminatory laws.)

  Jackson was to act as mediator and was present at the meeting. I thought I’d be sitting quietly and taking notes while Noel led the advocacy. But when I got to Jackson’s chambers in Sydney, Lew told me Noel wasn’t coming. I froze. We should cancel the meeting, I said. Lew refused: Noel’s instructions were that it should continue. Yet without Noel, I was the only one with knowledge of the reforms and the arguments. And I wasn’t well myself. I would be in hospital for a minor operation the following week.

  The meeting went ahead. I put my physical discomfort on the backburner for later attention. Brandis and Abbott were understanding of Noel’s absence and I focused on the task at hand.

  On our side were Mundine, who’d agreed to attend with us, consultants Tony Golsby-Smith and ex-CYI policy team member and Aboriginal advocate Dean Parkin, Lew (Noel’s trusted media expert) and me. On their side were Abbott, Brandis and Peta Credlin, Abbott’s chief of staff. They had copies of the letter I’d prepared from Noel.

  Right off the bat, Abbott and Mundine appeared to be closer than I’d first realised. ‘I think you’re on the wrong team,’ Abbott joked to Mundine, a longstanding Labor man, and all but winked salaciously. Mundine seemed pleased at the overture. This was not starting well.

  Jackson gave a rundown of the provisions. Abbott liked the CYI proposed preamble and was especially turned on by the articulation of the three parts of Australia. Abbott and Credlin then began suggesting that the equality principle be included in the preamble, as a symbolic sentiment rather than a substantive legal protection. They started drafting on the fly. To my dismay, Jackson (who, though a terrific legal mind, seemed a less proficient political strategist) joined in: ‘in the spirit of equality?’ he suggested. Stop it, mate, I thought.

  Abbott and Brandis agreed with removing section 25—but so what, that would change nothing substantive. They didn’t, at that stage, see any reason to amend the race power. And, of course, they were utterly opposed to a racial non-discrimination clause. Minimalists, just like Abbott’s email the year prior had indicated.

  Though Abbott said he wouldn’t ‘instinctively’ have an issue with equality before the law, he worried the clause would create a ‘lawyers’ picnic’ (endless litigation), placing too much power in the hands of ‘activist judges’ and taking power away from Parliament. It might have stopped the Northern Territory Intervention, he objected. And they might not have been able to suspend the Racial Discrimination Act—God forbid!

  I listened to their arguments, rather stunned.

  Abbott was also worried that refugees might mount an argument that they are being racially discriminated against, thus affecting immigration policy. (Hopefully, I thought.) Or maybe, gay people might argue for marriage equality, Abbott said. Such a clause went far wider than Indigenous recognition, they objected. It did not address the objective of fixing the Indigenous omission of 1901, and they were concerned that Indigenous people would get trapped in ‘the quicksand’ of ‘broader identity politics’ and that the referendum would fail as a result. Therefore, all things considered, they did not support a general equality provision.

  In other words: they wanted Parliament to retain its power to discriminate.

  To his credit, Jackson tried to interject that equality before the law was a value Australians could support, reassuring them that litigation was a necessary part of our constitutional process that already occurs. He was right, but it was to no avail.

  ‘The glory of our civilisation and culture is that we instinctively regard people as equal,’ Abbott said, as if that settled the matter. ‘We don’t need the value of equality in the Constitution. These matters are dealt with by Parliament.’ Yet only a few minutes before, Abbott and Brandis, parliamentary representatives themselves, had talked about the need to retain the power to suspend the Racial Discrimination Act.

  Abbott had conspicuous ears, but did he hear himself? Did they think about the two Aboriginal guys in front of them, men whose ancestors had likely been booted off to missions in chains, told they couldn’t vote, told who to marry and paid unequal wages? These laws were clearly made by politicians who, instinctively or otherwise, regarded people as unequal, and enacted unequal laws, under the auspices of a Constitution that contained explicitly unequal and discriminatory race clauses.

  I looked at Mundine, dismayed. He wore a puff-lipped grin and seemed to be nodding in agreement with Brandis and Abbott. When Abbott became prime minister, he would appoint Mundine as his chief adviser on Indigenous affairs, and I could never shake the fear that we’d unwittingly played matchmaker, though in fact Mundine and Abbott had a friendship that dated back to 2008.6 To my alarm, Golsby-Smith seemed to be nodding at Abbott’s and Brandis’s arguments too. No one was pushing back. I wished Noel were there.

  I spoke, because there was no other choice. ‘Okay, you’ve made your arguments,’ I said. ‘I’d like the opportunity to respond, if that’s okay?’

  I argued the history of discriminatory policies and laws, the fact that the majority of Indigenous people want more than just symbolism, the need for a principle of equality that works both ways—against the hard bigotry, but also against the soft bigotry of low expectations. I did the best I could on the fly. Bizarrely, Abbott was writing notes as I spoke. If I’ve misremembered my arguments, Abbott probably has a better record of them—he wrote it all down.

  I allowed myself to argue more animatedly, enjoying the rush of standing up to the big men. Brandis’s jowls began to shake. Steam seemed to gather around his ears and his complexion adopted a pinkish hue. He didn’t like my arguments and launched a haughty refutation. I recall vigorous theatrical head-wobbling and a steadily increasing pitch. I later read that Brandis had been photographed reading a book of classic Australian poetry in Parliament.7 Thinking back, I wonder if he was a
frustrated thespian after my own heart. ‘I don’t know who wrote these provisions,’ Brandis huffed, looking at me pointedly and crescendoing as he spoke, but that equality clause is ‘contrary to the central thesis of the letter!’ His last shrill note echoed through the opulent chambers. This was constitutional melodrama at its best.

  For a second no one moved. I decided to keep going.

  I began addressing their points one by one—for I too had been taking notes. My pushback must have shifted something, because at one point Brandis floated a compromise solution. If the aim was to prohibit discrimination against Indigenous people, why not ‘just say that’? He suggested words to the effect of: ‘No law of the Commonwealth, state or territory shall treat a person less favourably than other Australians by reason of him or her being Aboriginal or Torres Strait Islander.’ A racial non-discrimination provision that applied to Aboriginal people only. I pointed out the paradoxical nature of the proposition—a non-discrimination provision that is in itself discriminatory. Brandis in any case backed away from the whole idea quickly upon realising it would still be up to judges to decide what is ‘favourable’. I tried to pull him back on it, as it seemed like a glimmer of hope (paradoxical or not). But he declared it was not the Coalition’s position (even though the Coalition did not have a position, he noted)—he’d realised such a provision would still allow legal challenges to the Intervention and every other Indigenous-specific law. It therefore wasn’t going to fly.

  Tellingly, Brandis said there were three goals of constitutional recognition:

  1 the symbolic element

  2 getting rid of obsolete things (cleaning up the race clauses)

  3 enshrining rights.

  He could support 1 and 2, he said, but not 3. So there it was: the minimalist package outlined in clear-cut terms: a symbolic statement plus getting rid of references to ‘race’.