Radical Heart

by Shireen Morris

  This would not be acceptable to Noel, or to the majority of Indigenous people. I knew that much.

  They went immediately on to matters of procedure. They wanted a bipartisan agreement about the mission, before Reconciliation Australia started promoting the panel document. Abbott said he would write a letter to Gillard urging her to wait until the reform package was decided before embarking on any public education campaign.

  We said polite goodbyes. On shaking Abbott’s hand, I tried to make one last attempt at persuasion. ‘The equality guarantee is very important to Noel,’ I said. Abbott wouldn’t look me in the eye. He was more interested in Mundine and the other men.

  CYI was expected to comply. We were expected to submit.

  ‘She had him by the balls,’ Lew told Noel after the meeting. I was pleased. I knew I must have done okay, even though I’d lost the argument.

  I emailed Noel later, concerned that our efforts at trying to modify the panel’s provisions by tinkering with the constitutional drafting to accommodate conservative objections were going to fail. ‘There is a risk that we are slowly but surely getting cornered into the Coalition’s minimalist “symbolic” position,’ I wrote. ‘Our negotiations may yield a weak result.’

  I also reported Mundine’s equivocal behaviour. ‘He spent most of the time, in the little he spoke, asserting that he agreed with their arguments around wanting Parliament to retain power, wanting to minimise litigation, wanting to avoid a “legal dog’s breakfast”,’ I emailed. ‘He seemed to me very quick to agree with whatever Abbott and Brandis were saying.’

  I urged Noel not to hold back on his advocacy for the equality guarantee. I was worried that our efforts at formulating arguments that were appealing to conservatives like Abbott were rendering our positive advocacy impotent. ‘We are so busy trying to frame our argument in a way that the conservatives can swallow it, we don’t end up coming out and demanding what we really want … it must be demanded by Aboriginal people, in no uncertain terms. They are successfully bullying us, and often I feel I am speaking out of turn, because I am not Aboriginal.’ I’d let slip my true underlying concern. I felt I lacked legitimacy and authority to speak on the issue. I worried that I would be dismissed as a crackpot Indian who was verballing Noel. ‘They probably think I’m secretly just concerned about my refugee rellies!’ I wrote jokingly, thinking of their response to my advocacy for a racial non-discrimination clause. ‘I could see Brandis almost rolling his eyes a few times …’

  Noel responded from somewhere on the Sunshine Coast, in the midst of dealing with chemotherapy. He must have been feeling terrible, but he engaged with each of my points and gave direction on how to proceed.

  He considered how we might get Mundine to ‘harden up a bit’ with Abbott and Brandis. ‘Warren has pitched his flag at the furthest tactically right position,’ Noel surmised, ‘which puts him in a strong position to drag Abbott a bit more towards the centre.’ Problem was, it seemed to me then that Mundine was not interested in substantive constitutional reform. At that stage, he seemed basically a minimalist, like Abbott, though he would shift to more ambitious positions in years to come. Mundine was a self-described ‘treaties man’ and would show himself to be an influential voice in the debate.

  Noel also wrote something that has stuck with me ever since. In response to my concerns about illegitimacy, being a non-Indigenous advocate for Indigenous constitutional recognition, he made his position clear. ‘Shireen: Don’t hold back on your advocacy in this process,’ he wrote. ‘You’re the one who understands the issues and arguments. You’re responsible for the CYI position and you’re a player in this process, both on the basis that you’re as Australian as anyone, and you’re the responsible person within CYI. This is about getting an Australian Constitution right for all Australians, not just between indigenous people and the Anglo-Celts.’ Noel concluded our exchange with some encouragement on my legal drafting: ‘I’m amazed David Jackson approved your draft of the equality provision without much change! Constitutional drafting might yet be your forte!’

  I get teary thinking back on Noel’s words. How is it that a guy grappling with his own serious illness could bother offering me such encouragement? His words were the reassurance I needed. I’ve never forgotten them: Don’t hold back on your advocacy … you understand the issues and arguments … you’re a player in this process … you’re as Australian as anyone … Noel has never resiled from that position. Not even under great pressure, from both black and white.

  Who would have guessed it would take an inspired descendant of the country’s original owners to assure me of my place in Australia, as an Australian? I resolved to work hard to achieve the reforms Noel wanted—the reforms he felt his people, and his country, deserved.

  5

  To the Right and Up

  WHILE NOEL WAS sick, I kept advocating the equality guarantee. But the political dynamics were not shifting. I needed Noel’s direction. I’d also lived in Cairns for two years by now, and wanted to go home.

  My move was sped up by a break-up. Distraught and without close networks up north, I sought the permission of Fiona Jose, a dynamic and intelligent Indigenous leader who was then CYI’s CEO, to move back to Melbourne and work from there. She agreed. Melissa Castan also rang, having read my few publications in legal journals advocating a racial non-discrimination clause, and urged me to do a constitutional law PhD under her supervision, together with the supremely brainy legal philosopher Dr Patrick Emerton, at Monash. I used the enrolment as an extra excuse to flee the tropics. At the end of 2012 I left Cairns and returned to Melbourne to work remotely.

  My mates rallied around me when I got home and I realised how much I’d missed their company. They helped redecorate my Richmond apartment, promoting a fresh start. We ditched Mum’s old brown furniture (to her dismay) and purchased crisp white decor from Ikea. Jason, a fashion designer, painted my chairs a sparky blue. I was ready for 2013.

  Noel slowly recovered and came back into action. He and I had dinner with Melissa in Melbourne. Her father, the late Ron Castan QC, had mentored Noel when he was a young lawyer, and the families remained good friends. Ron and Melissa, like many Jewish lawyers (I would come to learn), empathised deeply with the plight of Indigenous Australians, for their people, too, had suffered horrific discrimination. Accordingly, it was often Jewish lawyers who courageously stood up for social justice and Indigenous rights—Mark Leibler, Ron Castan, Jim Spigelman QC and Ron Merkel QC being prime examples among the many. Jewish lawyers fought for Indigenous people during the land rights struggles, stood up for multiculturalism and tolerance in the vicious 18C racial vilification debates, and would back Indigenous people again in the struggle for Indigenous constitutional recognition.

  Noel’s insight into the need to ‘hunt on the right’ was gleaned largely from his old mentor Ron. In 1998, in search of a better solution to the Wik controversy, Ron had taken Noel to meet the far-right leaders of the Country Liberal Party of the Northern Territory, to discuss a compromise solution: how could Indigenous rights to land be practically and fairly reconciled with pastoralists’ rights, which the High Court had said could coexist? To Noel’s great surprise, Indigenous leaders were able to find productive common ground with the right-wing pastoralists. They formed an extraordinary agreement that Noel later described as ‘substantive and practical, generous towards indigenous concerns and aspirations, and reassuring in the certainty its terms gave to pastoralists’. It was an agreement that ‘gave parties on both sides a shared sense of unity, compromise and common purpose’.1 Noel realised that there might be more common ground between Indigenous people and right-wing Australians than is usually assumed—a lesson he applied in his thinking about Indigenous constitutional recognition.

  Over dinner, Melissa, Noel and I looked back on the time since the Expert Panel report. A year in, there was still no official response from government, though both Gillard and Abbott had given speeches supporting the concept of constitut
ional recognition when enacting the Aboriginal and Torres Strait Islander Peoples Recognition Act—basically an Act to set up some committees to progress recognition—on 13 February 2013.

  I had been sitting in the balcony at Parliament House when the speeches were delivered. Abbott’s was notable for its moral generosity. He rushed into the chamber at the last minute with what looked like hand-scribbled notes. What he said, coming from someone on the far right like him, gave me goosebumps:

  Australia is a blessed country. Our climate, our land, our people, our institutions rightly make us the envy of the earth; except for one thing—we have never fully made peace with the First Australians. This is the stain on our soul that Prime Minister Keating so movingly evoked at Redfern 21 years ago. We have to acknowledge that pre-1788 this land was as Aboriginal then as it is Australian now and until we have acknowledged that, we will be an incomplete nation and a torn people. We have only to look across the Tasman to see how it all could have been done much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation. So, our challenge is to do now in these times what should have been done 200 or 100 years ago: to acknowledge Aboriginal people in our foundation document.2

  Tony Abbott, using the T-word? I was shocked.

  In the years to come Noel and I would be told by people in the know that even uttering the T-word around Liberal and National Party circles could send shockwaves of terror through the Coalition. Yet here was arch-conservative Abbott saying the word himself. Abbott also commended several prime ministers, including many Labor ones, on their efforts towards reconciliation, signalling a bipartisan approach. Perhaps he harboured more goodwill than I thought—just like those conservatives back in 1990s rural Queensland. Maybe Abbott could be our Nixon, despite the bad meeting with Mundine and Brandis the previous year. We just had to persuade him to back substantive reform over mere minimalism.

  At dinner, we discussed Abbott’s influencers. Professor Greg Craven was one. The ‘one-clause bill of rights’ catchphrase had been propagated by Craven, and Abbott had adopted it. ‘You need to go and meet with him,’ Melissa advised. Noel sought out a mutual contact, who helped set up a meeting.

  We ran a forum in Cairns at which Noel and I spoke, along with Tim Gartrell. Gartrell was most known for running Kevin Rudd’s ‘Kevin 07’ election-winning campaign. He began as a unionist, then became a Labor ministerial adviser before becoming national secretary of the ALP Secretariat. He later became CEO of market research firm Auspoll, before heading Twiggy Forrest’s Indigenous employment charity, GenerationOne. In 2012, Reconciliation Australia employed Gartrell to run Recognise—the government-funded campaign body charged with raising awareness on Indigenous constitutional recognition.

  Cape York Institute applied to Recognise for funding to continue our work in the area. The funding received was limited, however, and for six months in 2013 I was forced to go down to part-time hours due to lack of money for my position. I took on work as a casual tutor in Administrative Law at Monash to supplement my income. By now I’d completed my practical legal training and had been admitted as a lawyer to the Victorian Supreme Court—no one could say I wasn’t a real lawyer anymore. Uni tutoring assisted in broadening my knowledge.

  As time went on, Gartrell grew increasingly wary of my presence. Though I tried my best to work productively with Recognise, I felt I was regularly brushed off. I don’t know what the source of their worry was. Perhaps that I wasn’t Indigenous. Perhaps that I was a youngish woman and thus was viewed suspiciously. Their attitude wasn’t warranted, however. I was just doing my job.

  At a Cairns constitutional forum jointly run by CYI and Recognise on 6 February 2013, Noel made his passionate case for Indigenous constitutional recognition. Gartrell talked about the campaign. I talked about the specific constitutional reforms, and a racial non-discrimination clause. At least I think I did. My memory of the day is blurred.

  On that same day, Lew Griffiths, Noel’s trusted confidant and a stalwart supporter of Indigenous struggles, died suddenly in Cairns. I heard Noel’s roar of grief when he was told the news. He disappeared. All the Indigenous people in the room got up one by one to shake the hands of the late Lew’s colleagues. I sat, continuing my work, unsure what to do. It didn’t seem appropriate to join in the handshaking. I hadn’t known Lew as long as the Cape York people who’d worked with him for years. And certainly, I wasn’t close to him like Noel was. I left them to their grief and kept to myself. I think my response was probably inappropriate, looking back.

  I recall when I was about five, my parents came back from the hospital to inform us that my little brother Neeraj had died. The family were all around, and everyone started crying and hugging. I didn’t know what to do, so I ran around doing somersaults on the couches and whooping, probably trying to cheer everybody up. ‘It’s nothing to be happy about,’ the neighbour boy said. I don’t think I ever learned how to respond appropriately to tragedy.

  Things with Recognise got worse, and it seemed Gartrell was trying to limit my involvement. I was told I was not funded to take part in strategy discussions on how to persuade conservatives—this was Noel’s job, together with strategist Mark Textor. Don’t interfere with the work of the big men seemed the subtle message. But Noel’s instructions were the opposite: I was to work on strategy, advocacy and policy. I carried on, aware of the latent tension emanating from this organisation that was supposed to be an ally.

  In May 2013, Recognise kicked off its ‘Journey to Recognition’ campaign in Melbourne. I remember sitting with Melissa Castan and Marcia Langton on the banks of the Yarra River, explaining the exclusion I felt. Recognise had flown Cape York traditional owners down to Melbourne for the event. They were all going to the Indigenous Round AFL match at the MCG. I wasn’t invited. I wondered what I’d done wrong.

  On 18 July, we held another seminar for the Cairns public at the Pullman hotel. Professor Megan Davis, Fred Chaney and Noel all spoke. I MC-ed. The room was full and the event was a success. All advocated passionately for a racial non-discrimination clause.

  We were plugging away. But I was still worried about Recognise.

  I tried to confide in Zoe Ellerman, our hardworking CYI head of policy, and Fiona Jose, our CEO. Both were empathetic and encouraging, but thought maybe I was paranoid. I didn’t blame them. I told myself to stop being so sensitive.

  My research into right-wing objections was informing both my analysis of the problem at hand and the direction of my PhD research.

  In June I cold-emailed Waleed Aly after reading his insightful Quarterly Essay on conservatism. I could tell he was insanely intelligent and wanted his take on our roadblock with conservatives. We met near the ABC Centre at Southbank. He’d been up all night writing; nonetheless he engaged generously with the issue. His advice was clear: he doubted we’d convince them to shift their position. Conservatives are fundamentally cautious about change, he explained. They will not endorse what they view as a radical change to the Constitution. They take the view that the common law system and the parliaments are best placed to effect slow, evolutionary change. ‘So how do we persuade them?’ I asked. Aly didn’t think we could, but wished us luck. It was an enlightening conversation.

  I wasn’t convinced, however. There must be a way, I thought.

  I cold-contacted Professor James Allan at the University of Queensland. Allan was strident in his denunciation of the supposedly activist High Court, and had publicly warned of the potential for legal uncertainty that came with constitutional reform. His emails helped clarify the conservative concern. Allan explained his view that the top High Court judges were wayward in their approach to constitutional interpretation. That’s why he opposed a racial non-discrimination clause: because it would give those judges greater scope to make mischief. I didn’t give up, however, and emailed back:

  Does this mean that if the High Court were different, and had employed the proper method of constitutional interpretation, your view on thi
s issue would be different? You say the High Court is now wayward. So if the Court was not wayward, would you support the sorts of changes being discussed?

  The reason I think it’s a bit of a flimsy objection is because Parliament is already bound by a written Constitution that judges must already interpret … our Constitution gives courts that role. Unless you want to get rid of the Constitution, or courts, altogether …

  I think that it is possible to draft something well. Yes there will still be unknowns, but as you have noted, these exist already with the Constitution as is. What we have to gain though, to me, seems so much more: a legal system that does not treat Australian citizens differently on the improper basis of ‘race’.

  Politics aside, if you were a lawyer entrusted with this problem-solving task, how would you fix it in the most responsible way possible? I think that is a really interesting question, and I think conservative constitutional lawyers are best placed to answer it!

  Allan was not persuaded, despite my unbridled enthusiasm. He said we would have to agree to disagree about the ‘flimsiness’ of his objection, and drew out the difference in position between Canada and Australia to show how things could go when a Constitution gives judges more licence to creatively make law. He concluded that he did not want Australia to be governed by the ‘moral sensibilities’ of activist judges.

  The exchange was instructive. This was about who decides. Who decides what’s right and wrong; who decides what laws are allowed and not allowed—judges or Parliament?

  It was becoming clearer why our advocacy for a racial non-discrimination clause was falling on deaf ears with the conservative right. These objectors were not necessarily racist (though some of them may have been). They may or may not have lacked empathy for Indigenous Australians and the history of injustice they’d suffered. Fundamentally, many of these individuals were dead set against further empowering the High Court, and the legal uncertainty this would entail. They wanted Parliament to retain all its power, unchecked and unfettered by unelected judges.