The bottom line: they had faith and trust in the current constitutional system, and particularly Parliament, to deliver good law and policy overall. Indigenous people, understandably given the history, did not. This was the key difference in perspective, the empathetic gap that was proving difficult to bridge.
Meanwhile, however, Brandis appeared to be shifting. A joint committee with senators Brandis, Rachel Siewert of the Greens, and Trish Crossin of Labor was considering the issue and held a roundtable on 30 April 2013. At the roundtable, Brandis seemed to suggest that a racial non-discrimination clause might not be so bad. He preferred an ‘unlimited’ head of power, he said, ‘just like every other section 51 head of power’. ‘Head of power’ clauses in the Constitution give Parliament its authority to make laws about certain matters. Section 51 of the Constitution gives the Commonwealth Parliament the power to make laws about a variety of things, from taxation to marriages, immigration to external affairs, and Indigenous affairs under section 51(xxvi), the race power, which was amended in 1967. Rather than limiting the head of power, Brandis indicated a preference for a standalone prohibition against discrimination, as proposed in section 116A by the Expert Panel. ‘Without committing myself to that view,’ he said, responding to an Indigenous advocate, ‘from a technical point of view I think that would meet the concern you have.’3
I read the transcript and wrote eagerly to Noel: ‘we should not give up on non-discrimination just yet. Not when Brandis is turning. Equality before the law is still the political key to winning this referendum.’ I urged Noel that the equality principle was needed to tie all these reforms together and make them coherent and fair. It was also the reform that would make the most practical difference to Indigenous Australians, I argued.
Brandis may or may not have been shifting. Perhaps he was just pontificating. On a racial non-discrimination clause, conservatives such as Abbott and Craven would likely not shift. And Abbott was soon to be prime minister.
On 16 August 2013, not long before the election that would see Abbott into power, Noel and I caught a taxi to North Sydney, to the Australian Catholic University to meet Professor Greg Craven.
I remember the drive. We were nervous. Craven’s language had been so negative and fierce, showing little respect for the intellects on the panel. He had written about our ideas as if they were trash. And now we were going to meet him. Would he blast us? Sneer at us? Would he be racist? Would he dismiss me as some kind of flaky foreign interloper?
I stressed about my clothes beforehand. What could I wear to make me more appealing to this terrifying Catholic arch-conservative? I was still traipsing about like a law student to all the meetings and didn’t even own a suit jacket. I knew the image I presented: female, dark skin, long curly hair (which to this day I can’t seem to find the motivation to brush), typically dangly earrings. I had PROGRESSIVE written all over me. I ditched the jangly Indian jewellery and attached fake pearls to my lobes, hoping they might soothe something deep in Craven’s middle-aged aristocratic psychology. It was worth a shot.
We discussed our approach on the way. ‘You lead the meeting, Noel,’ I said. He too was more dressed up than usual. No jeans today: shirt and tie. He admitted later he was also scared. ‘This is not about making the case,’ he advised. ‘No advocacy. This is about establishing the relationship.’
Craven greeted us cordially, more genteel than I had imagined from his ferocious columns. The office was plush and elegant, situated in the expensive rooms of the ACU Vice Chancellory. Craven had been on the ‘Yes’ team with Malcolm Turnbull fighting for a republic referendum but losing in 1999. He was experienced at referendum campaigns and politics, and particularly at referendum defeat. On Indigenous recognition, he was lining up to be on team ‘No’—despite being philosophically inclined to support the cause—because he felt the proposed racial non-discrimination clause and other Expert Panel recommendations would lead to legal havoc. They would empower activist judges. And they would fail.
It was this last criticism that annoyed me most. What was it about these influential Catholic commentators (Craven, Abbott, Mundine, later Frank Brennan) and their penchant for omniscient political predictions? While their Catholicism tended to instil an admirable commitment to social justice, it also seemed accompanied by a certain arrogance about their own assessment of politics and future political outcomes. I was baffled: did they have crystal balls or magic mirrors stashed away that no one knew about, perhaps beside their Bibles—or were the political prophecies handed down by God himself? Yet the subtext of the predicted failure was clear: Craven himself, and people like him, would ensure failure with their advocacy and powerful influence. It wasn’t just a prediction: it was a threat.
We sat on opulent brown leather couches and were offered cups of tea. There were some pleasantries. Finally the proposed reforms arose. Craven delivered his assessment calmly, soft-spoken, critiquing them as if they were someone else’s ideas, not largely mine and Noel’s. I don’t know if this was a kindness intended to take the heat off us, or if he thought there was no way Noel Pearson, an intelligent and sensible Indigenous leader, could propose such idiotic changes to the Constitution. But Craven was non-confrontational. Indeed, he seemed a thoughtful and considered, wise person—to my surprise.
His position on a racial non-discrimination clause was clear: he felt it would fail abysmally, and took pains to convey how soul-crushing such defeat would be for reform advocates. Such a failure, he said, would also be terrible for the country and for reconciliation.
He went on to explain the kind of ‘No’ case that would be galvanised. Any reform that handed power to the High Court, or tried to implement a back-door bill of rights, would galvanise concerted opposition from the right, he said. Constitutional conservatives would rally against it, leading to sure defeat. By this stage I already understood the objections: I just didn’t agree with them. I was itching to argue and watched Noel for signs of impending pushback. He was listening intently. I stayed quiet.
Craven gave one piece of seminal advice that stuck with us: don’t try to do everything in the Constitution. Instead, put the hook into the Constitution, then use that hook to achieve the reforms we want in legislation. He floated the idea of an Act of Recognition, outside the Constitution. A Declaration, as it were. Imagine what could go in that Act, he urged. Perhaps such an Act could achieve much more than could ever be achieved in the Constitution. It was an interesting idea.
The meeting ended cordially. ‘This has been very useful,’ Noel said. Rapport had been established.
I was angered by Craven’s easy dismissal of our key constitutional reform, however, and vented in the taxi back. ‘He’s saying a racial non-discrimination clause will fail—he’s the one who’s gonna lead the “No” case. He’s already started!’ I said. ‘What about the history of discrimination? These people talk as if Parliament has always done the right thing by Indigenous people. Do they think about why Indigenous people want such a protection?’
Noel was quiet a moment. ‘He does have us over a barrel on this racial non-discrimination clause,’ he said.
What does that mean? I wondered. I imagined a busty wench with her skirt hoisted up, being bent over a drum by a grunting, bestubbled sea captain. I googled the phrase later: Americans, evidently, would drape each other over barrels to empty the lungs of drowners (the sea-captain image was right) or to give floggings. It imputed powerlessness. Being at someone else’s mercy. That was us.
Craven and his right-wing constituency indeed had us over a barrel. The infuriating thing was that those objectors, in their positions of power, had no need to properly contend with our substantive argument. They didn’t need to answer why Parliament should be constitutionally allowed to make racist laws. They didn’t need to justify their refusal to be held to account to as basic and fair a principle as equality. It was enough to predict referendum failure, with the omnipotent and omniscient confidence that failure would be guaranteed, because th
ey would ensure it.
These were, it seemed to me, the white male custodians of the constitutional status quo, the moral and spiritual descendants of the colonial founding fathers, who in 1901 had shared out power among themselves, and given Indigenous peoples none. They still didn’t want to share. The objectors had the power. They knew it. They’d use it to kill the reform proposal.
I later learned that the same political dynamics had played out in the lead-up to the 1967 referendum. Liberal MP Billy Wentworth had proposed a racial non-discrimination clause to ensure that the to-be-modified race power, which would be used to legislate with respect to Indigenous matters, would not be used to discriminate against Indigenous people—or any people. A qualified power was also considered—the same alternative that both George Brandis and, later, the joint parliamentary committee headed by Indigenous Liberal MP Ken Wyatt would toy with unsuccessfully. Prior to the 1967 referendum, the government rejected a racial non-discrimination clause, stating that while such a guarantee would ‘provide evidence of the Australian people’s desire to outlaw discrimination’, it would also ‘provide a fertile source of attack on the constitutional validity of legislation’.4 The proposal fizzled.
A racial non-discrimination clause wasn’t part of the referendum proposal in 1967 because of concerns about empowering the High Court. After the Expert Panel, history was repeating itself. Craven’s predictions of political failure, as annoying as they were to me at the time, were supported by the historical evidence.
On 13 September 2013, Noel asked me to attend a meeting with him in at the airport lounge in Sydney. He was to meet with Tim Gartrell, Mark Textor and Tanya Hosch, the deputy director of Recognise. I knew Gartrell and had met Hosch a few times, who seemed an imperious Indigenous woman and was intimidating to me back then.
Noel gave me the background on Textor. He’d been John Howard’s key pollster: the brains behind Howard’s populist use of wedge politics back in the 1990s, having learned the tricks of the trade working under Ronald Reagan’s far-right strategist, Richard Wirthlin. Textor imported these tactics into Australian politics during the Howard era. At the time, Noel had slammed him for fanning the flames of racism, rightly so, and Textor had smarted—he’d been copping a lot of criticism for his ruthless tactics. Noel’s theory was that Textor now harboured a desire to make up for his past sins, particularly in relation to provoking racism against Indigenous people. He thought Textor was a crucial player, key to winning over the Coalition on substantive constitutional recognition.
I’d met Textor with Noel a few times before: he came across more clown than evil genius. He evidently enjoyed theatrics and would leap to his feet to mimic a politician or act out a point. He seemed like a decent guy, I thought.
The meeting was strange. It was me, Noel, Gartrell, Hosch, Textor and Textor’s adviser. First off the bat, Gartrell told me pointedly that any notes I was taking must not be emailed to anyone. He didn’t say this to the others—it was directed at me only. I put my pen down and didn’t write anything, thanking God, yet again, for the surplus melanin hiding my shame. What did they think I would do? Leak to the press? (The irony is not lost on me that I’m writing reflectively on this meeting now, four years later—from memory, not notes. Given all that has happened, I feel the real story must be told.)
There was some talk of Brandis and Indigenous Affairs Minister Nigel Scullion possibly shifting their position in favour of a racial non-discrimination clause. I nodded enthusiastically. Textor and Gartrell seemed to think the Coalition might be persuadable.
But at this point Noel sighed deeply. They stopped talking. He explained to them that he’d spoken to Craven. ‘That meeting was really a cold shower for me,’ he said. ‘We are not going to be able to convince them on a racial non-discrimination clause. It’s not going to fly.’
My heart sank. Was Noel giving up? What did it mean? Minimalism?
He pulled out a serviette and started drawing diagrams, as he often does, trying to convey his analysis of the political picture. Gartrell interrupted to suggest the advisers leave the room for this high-level strategy discussion. He looked at me. ‘Oh,’ I said, heart pounding. Big Brother had spoken. I got up to leave. Textor’s adviser got up too, though it seemed I was the problem, not him. Noel stayed silent. I couldn’t read his face.
I left and sat in the lounge with Textor’s man, discussing drafting options for the contentious clause. I hid it, but felt humiliated. Rightly or wrongly, I felt I’d been kicked out so my work could be rejected. So they could plot a minimalist proposal without my overambitious and naive interference. I felt dumb and inept, and worried I’d lost Noel’s support.
The meeting ended and I flew back to Melbourne, but I didn’t hear anything more about what had happened until the next day, Saturday. Noel called in the morning. ‘Strange meeting,’ he said.
‘Yep,’ I said, still smarting. The impending capitulation had me gutted. How was I supposed to work on a minimalist proposal? What would be the point? Drafting a miserable symbolic preamble and nothing else would be unutterably boring! I was already thinking about quitting.
‘I rang Gartrell,’ Noel continued. ‘I had a go at him for making you leave the room. I told him he can’t tell me who I’m allowed to bring to a meeting.’
I felt some smidgen of relief. But there was still the substantive issue: our reforms. ‘So what did you guys decide? What was the outcome?’ I asked.
Noel sighed deeply. ‘We are not going to get these conservatives over the line with a racial non-discrimination clause. They have us over a barrel. They will kill the thing. It is not going to work. I told them this was my view,’ he said.
I was devastated, and found myself grasping at straws. ‘I would just urge, Noel, that constitutional reform has to deliver something tangible for Indigenous people,’ I said. ‘If it’s just minimalism, it might be a feel-good win. But what would it mean in the long run for Aboriginal people? Right now there are leaders like you who can fight for change and better outcomes. But what about when you’re gone? Will the next generation be in a better position after this reform? What’s the legacy you’re leaving for future generations?’
‘Yeah, minimalism is not the solution,’ Noel said, and I was flooded with relief.
Then came the challenge: ‘What I need you to do, Shireen, is take an Apollo 13 look at the whole problem. I mean go into outer space and look at the problem from a completely different perspective, from the other side of the universe, from a new and different angle. We need to come up with an alternative solution. Our challenge is to step to the right and up—this is what I told Gartrell and them. I drew this diagram. Wait, I’ll send it … Hang on, I’ll call you back.’
That morning, Noel sent me a single PowerPoint slide. It was a graph depicting a narrow window of constitutional opportunity. Left and right were on the horizontal axis. Great and bad were on the vertical axis.
He rang again to explain. ‘If it’s too far to the left, conservatives won’t support it and it’ll fail, see? But if it’s too minimalist, and sinks too low, Indigenous people won’t support it and it’ll fail. The panel’s proposals, in hindsight, were too far to the left. We need to figure out how to step to the right and up. To move to something great, not minimalist, a proposal that truly excites Indigenous people, but that allows Nixon to go to China. A proposal the right can support too. We need to find the radical centre on this problem. So that’s what you need to think about.’
That’s what my job became. Figuring out how to step to the right and up.
6
In Search of the Radical Centre
I WENT ON A spy mission to the Samuel Griffith Society, the organisation of right-wing constitutional conservatives chaired by former High Court judge Ian Callinan. Together with Dyson Heydon, Callinan had been one of the most conservative members of the court. The motto of the Samuel Griffith Society is ‘Upholding the Australian Constitution’. My aim in attending was to discern the key players we
needed to get on board, to figure out how to step to the right and up.
The November 2013 conference was at the North Sydney Rydges hotel. I was immediately struck by the demographic: predominantly old white men. Wrinkled, pale and bent was the look. War medals and walking sticks.
I couldn’t help but feel nervous. Gary Johns was giving a speech on Indigenous recognition, and I’d read his opinion pieces. He had been an elected member of the Labor Party until he lost his seat in 1996. He then drifted to the far right, working with the Institute of Public Affairs and the Bennelong Society, which advocated paternalistic and, in my view, prejudiced approaches to Indigenous issues. I’d read Johns’ opinions on Indigenous recognition and found his arguments disconcertingly bigoted—not to mention illogical. Recognise alerted us that Johns was speaking, which is why I went: know thy enemy, I figured. Recognise said they’d send someone along too, but there was no one I spotted. A sprightly young ‘R’ campaigner would have stuck out.
I would have stuck out too. In this crowd, people under fifty were scarce, women were even more scarce, and non-white people were scarcest of all. I don’t know what those conservatives thought of me—the younger, dark-skinned imposter prattling uncontrollably about constitutional reform and Indigenous people to anyone who’d listen. I wonder if some secretly turned down their hearing aids to tune me out over those lunches and dinners. Some engaged in vibrant discussion. Others suffered me politely.
An exception to the age demographic was the young-looking Julian Leeser, constitutional arch-conservative and Jewish-Australian lawyer, a former Menzies Research Centre executive director and now convenor of the Samuel Griffith Society conference. Dressed in impeccable suit and spectacles, Leeser was obsessed with the Australian Constitution. Seriously obsessed. On his tenth birthday he asked his parents ‘not for a BMX bike or a cricket bat’ but for a copy of the Constitution. ‘I think the Latin term for such behaviour is nerdus maximus,’ he joked in his maiden speech to the Australian Parliament in 2016, three years later.1 The self-deprecation prompted warm-hearted guffawing in the audience. I was there at Parliament House that day, with his many multicultural constituents, friends and family. Leeser had invited me and I was, by this stage, a fan. I observed him to be a consummate politician with a good heart.
Radical Heart Page 10