‘I was fighting the urge to blast them,’ he said. ‘I think you need to keep engaging. Without me. It might go better if I’m not there. Maybe they were showing off a bit in front of me, not wanting to concede anything?’
I asked for a follow-up meeting with just me. Leeser and Freeman agreed.
This time I allowed myself more dramatic persuasion. It got more heated. Freeman and I started to clash. Leeser stayed cool. Then I made a plea about perspective: ‘You have to try to understand where Indigenous people are coming from here, guys. Try to develop some empathy. Understand why they are asking for substantive reform. Don’t just dismiss what they’re saying. Indigenous people are not stupid or crazy …’
Freeman seemed to take offence at this. ‘We’re not saying they’re stupid or crazy,’ he interjected. ‘If that’s the way you’re going to characterise what we’re saying, you won’t get very far.’
I pressed on. ‘You are, actually. You’re dismissing what Indigenous people are asking for, instead of thinking about why they might rationally be asking for constitutional reform. Why do you think they’re asking for a racial non-discrimination clause?’ Leeser and Freeman looked at each other. They weren’t sure. ‘Because the Constitution has allowed laws and policies that have treated them so unfairly,’ I said. ‘Because they were carted off to missions in chains, because they were told they couldn’t vote, because they had their kids taken away, because they were paid unequal wages. Because the Constitution enabled them to get treated like dirt …’
Something started shifting for Freeman. A light bulb flickered on. There was a moment of pause. ‘I suppose I see what you’re saying,’ he said slowly. ‘I guess in a sense, Indigenous people are looking for a guarantee that the future will be better than the past … in the same way the Jews might seek a guarantee that the Holocaust doesn’t happen again.’
Breakthrough.
Suddenly there we were: human beings seeing an issue from other human beings’ points of view. Empathy. Leeser stayed silent, thinking hard.
‘Help us find another way,’ I urged. ‘A different reform that gives Indigenous people the fairer go they seek, but that doesn’t ignite the concerns you raise about the High Court.’
The conversation was more productive after that. We went on to discuss the possibility of a more limited non-discrimination clause—still wouldn’t fly, as it still empowered judges. I’d covered this terrain already with Abbott and Brandis. Then we discussed a power qualified with a word like ‘benefit’ or ‘advancement’—no chance, same problem. What about an Indigenous power that referred to an Act, I suggested. And what if the Act set up an Indigenous body? Like a guarantee of consultation? Seemed uncertain.
Leeser said he’d have no problem with an Indigenous body set up in legislation. Okay, I said, but what about the constitutional guarantee? That’s why we are thinking about constitutional reform, after all.
We went around in circles, discussing possibilities. But something had broken through. Now we were problem-solving together. Australians who shared empathy for Indigenous people, and the Indigenous predicament. Australians who wanted to see Indigenous people guaranteed a fairer go.
I was told that Tim Gartrell had called CYI to raise concerns about me. He’d rung to ask why they didn’t have an Indigenous person in my role, instead of me—the white male campaign director of Recognise, the government organisation campaigning for Indigenous constitutional recognition, called an Indigenous organisation to suggest they shouldn’t be employing a non-Indigenous Australian.
At the time, I couldn’t find words to adequately explain the offensiveness of Gartrell’s apparent complaint. I have found them now: it was a combination of hypocrisy, chauvinism and political correctness gone so mad that it needed a white politics whiz to advise my Indigenous bosses on the appropriate way to be politically correct. That is, it’s okay for a white man to work on Indigenous recognition—indeed, to head up a multimillion-dollar public campaign on Indigenous recognition—but an Indian-Australian woman should, ideally, not even be an adviser in the process. It was bizarre.
‘What ethnicity are you, Tim?’ was the question fired back by my superiors.
I was deeply rattled. If there was one thing I was sure of about myself, it was that I was a diligent and hard worker. I took all my instructions from Noel and executed them to the best of my ability. I took pride in my work, and it was hurtful to hear that big boss Gartrell seemed to want me out.
It also seemed wrong in principle. While I was all for getting as many Indigenous people into employment and advocacy as possible, shouldn’t Indigenous people and organisations also be able to hire whoever they want? Recognise might have been funding our constitutional recognition work at that time, but why was some white guy from an external organisation trying to tell CYI, run by Noel and Fiona, how to manage their affairs?
Noel told Gartrell off, further souring the already guarded relationship. Noel commented to colleagues later: ‘If Shireen was a white man advising on Indigenous issues, no one would think twice.’ It was true. No one objected to Gartrell, Mark Textor, Mark Leibler, Henry Burmester, Frank Brennan, George Williams or the multitude of other qualified and intelligent white male lawyers and political gurus who were regularly sharing their knowledge, input and opinions for the cause. So why did they object to me?
Partly, it was a boys’ club. But partly, it was the established Indigenous affairs culture: almost as if you needed to be either coloniser or colonised, but nothing in between, to have a valid legal or political view. Yet where was the wisdom in Indigenous people getting legal and political advice predominantly from the direct descendants of the original oppressors? Wasn’t it fundamentally a conflict of interests? Surely a more objective third party—the descendant of a random mix of Indians, for example—was a better choice? I smiled dumbly at the thought. The silly musing was little consolation.
The Recognise people should have been allies. We should have been working together to achieve a good result for Indigenous people, and for Australia. I deeply regret this conflict, which ended up lasting years, because we might have done better in the end had our powers been combined from the start. Instead, we were fighting among ourselves, wasting time trying to get each other sacked.
The Indigenous leadership at CYI stuck up for me, though. And after this debacle, Noel resolved that we could no longer be affiliated with Recognise. So long as I had his support, I carried on.
Damien Freeman and I started to become friends. We began to call each other regularly to talk about ideas. I shared with him the draft paper I’d discussed with Craven. He took to commenting on my work and helping me think through concepts and arguments. He was a smart guy and became a mentor.
I was still grappling with whether you could use a semi-entrenched Act, outside the Constitution, to ensure that an Indigenous representative body would be more stable than the legislative bodies of the past that were abolished as soon as governments changed, or as soon as they became politically unfashionable.
Then one day Damien and I had an extraordinary conversation. He rang me and we repeated the points about the need for stability for the body, the need for a guarantee for Indigenous people that the future would be fairer than the past. ‘Why don’t you put the body in the Constitution, if you want it to be guaranteed?’ he said.
I was taken aback. Damien was an obsessive constitutional conservative—the guy who, when we first met, had not even understood why Indigenous people were seeking constitutional reform or constitutional guarantees. Yet he had now proposed a solution I never imagined might be acceptable to him and his constituency. That’s why I was tinkering around with semi-entrenchment—because I’d assumed constitutional entrenchment would be a bridge too far for these right-wingers.
I was wrong. About Damien at least.
‘Would there be a way to constitutionally guarantee a body that doesn’t empower the High Court?’ I asked, barely able to contain my excitement. ‘Becaus
e that is the main issue—you “con cons” don’t want to empower the High Court to strike down laws.’
‘Maybe there is a way,’ Damien said. ‘It could be a clause saying Parliament must set up an Indigenous body, I suppose. That would be far simpler than semi-entrenchment.’
‘This is going to require a complete rethinking,’ I declared. I got off the phone and danced around my living room. I’m pretty sure I whooped out loud.
I called Noel. ‘You’ll never guess what Damien just said to me …’ I filled him in. ‘So maybe you can have a constitutionally guaranteed body, then a Declaration outside the Constitution, which could—depending on content—be something akin to a treaty? And, you know, a settlements commission operating under it, set up in legislation?’
Noel listened intently. ‘You need to organise a trip to New Zealand, asap,’ he said.
7
Forging the ‘Con Con’ Alliance
FORGING COMMON GROUND between parties of oppositional views usually requires both parties to shift. The shift can be small but profound, and requires an intellectual and emotional journey that presents the other party with a different and compelling way of looking at a shared problem. The persuasion often becomes an exchange: in getting them to see your point of view, you come to see theirs. Building empathy across political, ideological and cultural divides. That was my favourite part of trying to forge consensus with the right.
The process at its best felt like reconciliation in action. A shared journey of discovery.
In June 2014, CYI obtained government funding for a research trip to New Zealand, to investigate the ways Maori are recognised in New Zealand’s constitutional arrangements.
The delegation included Cape York Aboriginal and Torres Strait Islander woman and CYI’s CEO Fiona Jose; Bardi man from saltwater country on the Dampier Peninsula and CEO of the Kimberley Land Council Nolan Hunter; the boy who began at Brewarrina mission and as a man became CEO of Darkinjung Local Aboriginal Land Council, Sean Gordon; Cambridge philosopher and director of the governor-general’s constitutional essay prize at the Constitution Education Fund Australia Damien Freeman (Noel’s brainwave); and me. The five of us went for a week, visiting Wellington, Hamilton and Auckland. I prepared a research/briefing paper, booked the meetings and organised the schedule.
The trip was jam-packed full of meetings and learning opportunities. Sean has never since let me forget how much I crammed in. I exhausted everyone.
On recognition and reconciliation, we found New Zealand was miles ahead of Australia. Maori were richly, inclusively and substantively recognised in the national and institutional life of their nation. And it wasn’t just about symbolism. In New Zealand, Maori recognition was expressed through working structures, processes and democratic systems. New Zealand taught us that Indigenous recognition is not just a static thing. It is not just a statement or a ‘plaque’ or a preamble that makes people feel good. It’s a process. It’s operational. A big part of Maori recognition in New Zealand occurs through political representation, through having a voice in the systems governing the nation and in their affairs.
First, there was the Treaty of Waitangi, which was signed between Maori and the Crown in 1840. It established principles of partnership and biculturalism in the relationship between Maori and the Crown, which is seen as New Zealand’s founding constitutional relationship. The day the treaty was signed is celebrated as Waitangi Day, New Zealand’s national day. In contrast to Australia, where our national day commemorates a unilateral moment of British-asserted dominance that excluded, ignored and dispossessed Indigenous peoples, New Zealand’s national day commemorates a moment of partnership and peacemaking. As Abbott described somewhat romantically in his 2013 speech, the signing of the Treaty of Waitangi was the moment ‘two peoples became one nation’.
New Zealand has also had specific Maori representation in Parliament, through dedicated Maori seats, since the 1860s. The seats have come to be seen as an extension of treaty partnership principles. There is also the Maori Council, which grew from the Maori Parliament movement—a consultative and representative body for Maori people, empowered under legislation to advise government on Maori affairs.
New Zealand has embraced settlements and agreement-making between Maori and the Crown to redress historical grievances and breaches of the treaty. The Crown has committed to resolving all settlements, which include cash compensation (though the Crown admits this can only ever be nominal), documenting of history, return of land and cultural recognition. Settlements also include a formal Crown apology for wrongs done. The cathartic settlements process enabled truth-telling about history, allowing both parties to have their views heard, to come to terms with the past, and agree on a stronger partnership for the future. We were lucky to visit a settlement signing ceremony, replete with Maori song and dance, that was a joyous occasion of tears and healing. The Crown Apology was read out by the attorney-general in both Maori and English. These moments of reconciliation and recognition were evidently taken seriously.
Perhaps the most impressive aspect of Maori recognition in New Zealand was the way the nation incorporates and celebrates Maori heritage and culture as New Zealand’s heritage and culture. The Maori Language Act recognises Maori as an official language of New Zealand and set up the Maori Language Commission to promote and revitalise Maori language. New Zealand rugby teams proudly perform the haka, which is embraced as a national expression of New Zealand culture (compare the way some Australians reacted when Adam Goodes performed a two-second Aboriginal war dance on the Aussie Rules football field). New Zealand has also embraced dual place-naming, which flows from the settlements as a form of cultural recognition. The nation itself now carries its Maori name: Aotearoa.
By the time we met Chris Finlayson, then New Zealand’s attorney-general for the liberal-conservative National Party, we had been blown away by the difference in attitude and political culture in matters of Indigenous rights and reconciliation. ‘How is it that New Zealand’s political culture is so much more open and positive towards Indigenous rights?’ I asked. ‘In Australia conservatives are scared to utter the word “treaty”. How is it that your conservative government championed the process?’
I was thinking about Nixon going to China. Stepping to the right and up.
Finlayson said he viewed the Treaty of Waitangi settlements process as deeply aligned with conservative values. Fair compensation shows respect for the rule of law, he said. Which made sense: if the Crown does not make good on past breaches of its treaty promises, what does that say about Crown accountability? It also shows respect for property rights, Finlayson explained—a deeply conservative value. If the Crown respects property rights, then Maori property rights should be respected, and justice must be done where people’s property rights have been undermined.
Damien sat next to me, nodding quietly. Conservative values supporting a treaty. Supporting compensation and just redress. I was staggered at the sheer difference in attitude.
We met Sir Edward Durie, co-chairman of the Maori Council, the first Maori appointed as a justice of the High Court of New Zealand and a leading legal expert on the Treaty of Waitangi, together with Donna Hall, an experienced Maori affairs lawyer, who is married to Durie. Hall is a fiery woman. She noted Nolan Hunter’s baldness—the bald black man was usually the ‘big man’ of the tribe, it seemed. Hall’s sassy commentary reminded us of Marcia Langton’s cynicism regarding black men in their black hats. Amusingly for us, however, the gentle and soft-spoken Nolan is nothing like the usual ‘big man’—he is a total softie. Hall also identified Damien as the ‘white brains’ of the group. In New Zealand, too, it seemed a white adviser was an anticipated accompaniment to any tribal delegation.
The substantive discussion with Hall and Durie was about the Maori Council. In Australia, Indigenous people have only ever had a representative voice sporadically, and not since ATSIC was abolished. ‘Don’t underestimate the intelligence of Indigenous people to be abl
e to choose their own representatives for a body,’ Hall advised us. We heeded her counsel.
We also met Te Ururoa Flavell, the Maori Party co-leader; Judge Craig Coxhead, a Maori Land Court judge who sat on the Waitangi Tribunal; Dame Claudia Orange, a Treaty of Waitangi historian and expert at the incredible Te Papa Museum; and a heap of academics and lawyers. We even met the Maori king, Kiingi Tuheitia, and his advisers—and took to calling Nolan ‘King Nolan’, as it seemed an appropriately bombastic and ironic title. Often the meetings were preceded with song and ritual from our hosts, in Maori. We were granted a half-day audience with the members of the Waitangi Tribunal, who explained in fine detail how the settlements process worked. The members of our delegation learned a huge amount about this nation so close to our own, yet so far ahead.
The five of us bridged gulfs between each other, too. We discussed and debated extensively what reforms might be appropriate for Australia. The trip cemented relationships and alliances in support of substantive constitutional recognition that would last for years, across organisations. Aboriginal leaders King Nolan, Fiona and Sean got to know a conservative monarchist Jew in Damien. And Damien, who had probably never hung out with Indigenous people let alone travelled overseas with them, through our nightly group debriefs and on-the-road chats came to better understand why so many Indigenous people seek substantive constitutional reform.
Damien became stimulated by the legal and political problem at hand and would send me emails at about 4 a.m. each day of our trip. He read my New Zealand briefing paper carefully. ‘I’m really interested in the stuff about the Treaty of Waitangi as a source of national pride, pride in Maori culture as a national culture of New Zealand,’ he wrote. He suggested we go back to Australia with recommendations about how recognition ‘could instil pride in Aborigines as first Australians’ but also in Australians generally—pride in ‘Aboriginal culture being Australian culture’.
Radical Heart Page 12