Radical Heart

by Shireen Morris

  We were coming to see that a Declaration of Recognition, if properly written and negotiated, could carry a place of shared honour for Australians, perhaps akin to the time-honoured place of the Treaty of Waitangi in New Zealand.

  Damien’s thinking about an Indigenous advisory body was also progressing, particularly after our meeting with Durie and Hall on the Maori Council:

  I think her comment on a policy advisory body fit very much with your thinking about an advisory body. She seemed to think it was important that the advisory body not have any financial role (unlike ATSIC), and that balance would work if it were funded by the state but elected by Indigenous people. I am ever more inclined to think that this is achievable. The issue is whether it can get constitutional sanction. On this point, I think it is probably going to be important to link it to the head of power … surely, if the Parliament is going to be given power to make laws about Indigenous policy, it ought to be required to consult with Indigenous people before enacting such laws … It also explains why it should be in the Constitution: if the Constitution is the source of the power, it ought also to be the source of the procedural qualification on how the power is exercised.

  Damien’s logic was compelling. He was the shining diamond unearthed amid the old-fogey followers of the Samuel Griffith Society. We found common ground through mutual give and take and mutual respect. ‘Julian and I thought you were just a typical lefty human rights lawyer,’ he told me one day, evidently impressed with the way I took on board their ideas and concerns, and how I opened my thinking to new ideas. And now he was doing what I had done.

  We were also discussing the possibility of a settlements commission for Australia inspired by the Waitangi Tribunal, which Noel and I envisioned being part of the reform package. To my astonishment, Damien as a conservative and monarchist had no issue with the idea that the Crown should justly settle historical grievances with Indigenous peoples. He viewed this as an important part of the honour of the Crown, and in years to come would publish his support for such a process in Australia.

  Abbott was a monarchist and Anglophile, like Damien. I gathered they were relatively close; later Damien would write a book about Abbott. And Abbott had an affinity with New Zealand too, through his wife, Margie. Margie had even once visited the Waitangi Tribunal, like us. If Damien could be moved by the New Zealand experience, perhaps so could Abbott. He had mentioned the treaty in his speech, after all. ‘We only have to look across the Tasman to see how it could have been done so much better,’ he had said.

  Why did things happen so much better across the Tasman? In my view, it is because New Zealand confronted and dealt with its colonial conflict, rather than repressing it. It did so through the treaty, which despite persisting power imbalances established New Zealand on a foundation of partnership rather than simple conquest and oppression. The Crown, acknowledging its past mistakes, has continued to address this history and strive for its ‘more perfect union’—through settlements, Maori political representation and other proactive measures that encourage a fair relationship. Australia, by contrast, has tended to opt for repression over proactive resolution, and silence over honest discussion of past pain. Thus, our nation’s unhealed wounds bubble up on the footy field or on Australia Day. Moments that should be about national unity instead lay bare the soul of a country still largely divided and troubled by an unresolved grief.

  I think we will remain divided until we honestly address the past, and make amends through a constitutional promise for a fairer future.

  While I was in New Zealand, Noel received a text from Abbott asking for his thoughts on the idea of an extra-constitutional Declaration. Julian and Damien had sent Abbott their concept paper, and Abbott had instructed Damien to forge common ground with Noel. Like Greg Craven, Abbott evidently knew that for Indigenous recognition to succeed, Indigenous leaders and constitutional conservatives needed to find agreement on the way forward. In a real sense, the ‘con con’ collaboration with Noel and me proceeded with Abbott’s blessing. Indeed, it was what Abbott asked Damien and Julian to do.

  Noel told me to draft a letter responding to Abbott’s question. I did it from my hotel room. We exchanged emails agonising over the words, not wanting to concede anything too early. Finally we settled it and the letter was sent on 11 June 2014:

  Dear Prime Minister,

  I write in response to your recent text asking for my thoughts on the proposition that Indigenous recognition might be achieved in a non-legal Declaration voted for by the Australian people, rather than in the Constitution. In this matter, alongside Shireen Morris, my constitutional reform adviser, I have engaged with Julian Leeser, Damien Freeman, Anne Twomey and Greg Craven.

  There is possibly merit in Julian and Damien’s proposal, but only as part of a broader package of reforms. On its own, a Declaration would be rich in symbolism but light on substantive reform. Symbolism is important, but we also need to make a practical difference to the problems we face in Indigenous affairs.

  Conservatives like Julian and Damien, in their eagerness to get judges out of the equation, tend to forget the Indigenous views and history that have driven this conversation about constitutional recognition.

  Conservatives are concerned about judicial activism and do not want ‘rights’ clauses added to the Constitution. As a result, they oppose a racial non-discrimination clause. While I do not accept that these anxieties about judicial activism are justified, in the spirit of mutual understanding, I have come to some appreciation of conservative concerns about giving unelected judges too much power.

  However, conservatives reciprocally need to understand that Indigenous people see constitutional recognition as being fundamentally about achieving constitutional protection and recognition of Indigenous rights and interests within Australia. Symbolism is only part of it. Substantive change in the national approach to Indigenous affairs is the other part.

  Conservatives, too, need to understand our legitimate anxieties. Our people have lived through the discrimination of the past. We therefore have a legitimate anxiety that the past not be repeated, and that measures be put in place to ensure that things are done in a better way. If conservatives assert that a racial non-discrimination clause is not the answer—then what is a better solution?

  Julian and Damien argue that the Constitution is a rulebook, a practical charter of government that sets out power relationships, like that between the Commonwealth and the states. It is not a vehicle for aspirations and symbolism: these can be articulated in a Declaration, not in the Constitution. But if the Constitution is a practical rulebook governing national power relationships, as conservatives assert, then it should also be acknowledged that there is one very important, national power relationship clearly not addressed in the Constitution.

  Arguably, the rulebook should be amended to make provision for Indigenous people to be heard in Indigenous affairs.

  After all, if unelected judges should not decide what is in the interests of Indigenous people, then who should decide? Indigenous people are only 2.5% of the population, and hardly get a fair say in Parliament, even on matters directly concerning them. Parliaments have never been good at listening to Indigenous people. This is the elephant and the mouse problem that has characterised Indigenous affairs.

  Perhaps we can find a way to make democracy work better for Indigenous people. Perhaps we can find a way of ensuring that Indigenous people get a fair say in laws and policies made about us, without compromising the supremacy of Parliament. Perhaps we can create a mechanism to ensure that Indigenous people can take more responsibility for our own lives, within the democratic institutions already established, and without handing power to judges.

  We don’t want separatism: we want inclusion. We want to be inside the decision-making tent. We want our voices to be heard in political decisions made about us. A mechanism like this—guaranteeing the Indigenous voice in Indigenous affairs—could be a more democratic solution to the racial discrimination
problem. You have already begun down this path with your Indigenous Advisory Council. Our Empowered Communities work is also heading in this direction. I am interested in how we can enhance and build upon your IAC in a way that excites Indigenous people and all those interested in Indigenous wellbeing and justice.

  I ask that you keep an open mind. We are in the process of trying to reach some consensus on these ideas with Anne, Greg, Julian and Damien. A Declaration and removal of the ‘race’ clauses alone will not be acceptable to Indigenous people. We need to all work toward a package of reforms that have the potential to excite Indigenous people and con cons alike.

  Yours sincerely,

  Noel Pearson

  Damien and I had begun trying to draft the constitutional clause requiring Parliament to set up an Indigenous advisory body that would engage with Parliament on Indigenous affairs. We were leading up to a crucial workshop with Anne, Greg, Julian and Damien, together with me and Noel. The workshop would be a chance to float the idea with these key constitutional conservatives to see if it could be supported by the wider group.

  On Noel’s instructions, I shared our letter to Abbott in confidence with the workshop participants.

  Leeser’s response to the argument in the letter was cautious, but showed he had shifted a lot from our first meeting. His email back acknowledged the need for substantive changes in the national approach to Indigenous affairs, and suggested that much could be achieved by legislation and policy. Crucially, he also acknowledged past racial discrimination against Indigenous people and the anxiety to see that it was not repeated—which Leeser said he shared. He said he didn’t have any ‘magic solutions’ about ensuring Indigenous people a voice in Indigenous affairs, but suggested the solution might be legislative rather than constitutional. He resolved to think more about this before the workshop.

  Damien warned me that getting Julian on board with an Indigenous body in the Constitution would be hard: Julian was more conservative than his friend. But we agreed that he was the key. He was still the benchmark.

  I was so nervous I couldn’t sleep the night before. It was the day of the ‘con con’ workshop, Thursday 19 June 2014. Noel and I were crossing the bridge yet again.

  ‘How are we going to do this?’ I asked.

  ‘I’m going to let you lead it all, Shireen,’ Noel said. He sounded chirpy.

  The workshop was at the ACU Vice-Chancellory in North Sydney—the usual meeting place. I’d prepared a PowerPoint presentation of our reform argument that included constitutional drafting prepared with Damien. There was no slide projector—the secretary printed off copies for everyone: Anne Twomey, Greg Craven, Damien Freeman, Julian Leeser, Noel and myself. Jimi Bostock was there too—CYI’s nuggety comms adviser, whose theatrical hand gestures and exaggerated ‘mmmmm’ thinking noises were a constant source of entertainment.

  First up, I sought to reflect back to them each of their conservative arguments. I quoted Craven and affirmed his position: ‘Greg is correct, we don’t need to achieve everything in the Constitution. This can be a package of reforms. The Constitution can contain the hook. Greg is also right that we need to find a consensus between Indigenous people and the “con cons”. Hence this workshop.’

  I quoted Twomey and affirmed her position: ‘We acknowledge that a certain amount of legal uncertainty arises in relation to the proposed racial non-discrimination clause. Your paper, Anne, provides some good options for qualifying the replacement power. My only concern is that Greg and Julian and others are still dubious about a High Court–adjudicated qualification, so we may need to find a different solution.’

  I quoted Julian and Damien, and affirmed their position: ‘We understand what you are both saying about the danger in having a new preamble in the Constitution. We also take on board your advice that the Constitution is a rulebook: a pragmatic and practical charter of government, not a vehicle for poetry … we’ve been largely persuaded by that point.’

  I told them we now better understood conservative concerns about giving too much power to unelected judges through a racial non-discrimination clause. They listened, pleased at the validation.

  Having appropriately conceded some ground, I then presented the Indigenous perspective on behalf of Noel—as characterised by an Indian-Australian relative newcomer to the debate. I reminded them of the history of Indigenous advocacy: Indigenous people seek constitutional protection of their rights and interests, I emphasised. I quoted Patrick Dodson and the great Yolngu elder Galarrwuy Yunupingu, who in their Vincent Lingiari lectures had both noted the importance of constitutional stability and guarantees. I told them about our New Zealand trip and what we had learned there. Symbolism is not enough for Indigenous people, I said. They listened.

  I set up the challenge for the workshop: to reconcile the competing concerns. The conservative concern was that we should maintain the integrity of the Constitution as a practical and pragmatic charter of government: we should not give more power to judges or create uncertainty by putting abstract phrases or rights clauses into the Constitution. The Indigenous concern was that we find a certain and stable way to protect Indigenous interests and prevent unjust discrimination against Indigenous people. Our challenge was to find the correct synthesis of the competing philosophical ideals.

  I then presented our political hypothesis: we needed to step to the right and up. We needed to find the radical centre.

  I used Noel’s favourite metaphor to point to the solution. In Australia, the 97 per cent elephant of government makes all the decisions about the democratically powerless 3 per cent Indigenous mouse. Instead of a racial non-discrimination clause, is there a way to constitutionally guarantee that the 3 per cent Indigenous mouse has a voice in political decisions made about it? Instead of empowering the High Court to decide what’s good or bad for Indigenous people, can the Constitution empower Indigenous people themselves to have a fair say in laws and policies made about them and their rights?

  I proposed three drafting solutions that could guarantee an Indigenous voice in their affairs, as discussed with Damien. The first two solutions were deliberately unworkable. The third was Damien’s suggested drafting, which I had helped refine (and which he had told me not to frame as his, in case that clouded the politics in the room). It was the most sensible. I summarised the suggested package of reforms: an Indigenous body in the Constitution, appropriately remove references to ‘race’ while retaining an Indigenous head of power, and a symbolic Declaration outside the Constitution.

  Vigorous discussion ensued.

  Twomey wanted to clarify that we weren’t advocating reserved Indigenous seats in Parliament. All agreed this would be politically unviable. But there was no outright opposition to a constitutionally guaranteed Indigenous advisory body. The vibe was constructive and positive.

  Greg, Anne and Julian immediately began discussing how to make the drafting of constitutional option three more workable. How do you ensure the body cannot hold up Parliament through withholding advice? This needed to be fixed. Julian was concerned about justiciability: he wanted to be absolutely sure there could be no High Court uncertainty. ‘You need to add a “no legal effect” clause,’ Greg advised. Julian agreed.

  Despite such technical concerns, they were basically persuaded by the concept. Greg even had an interesting suggestion regarding the name of the body: rather than calling it a Commission or something that would ignite misplaced fears about ATSIC, why not adopt an Indigenous language name? This would have the added advantage of incorporating an Indigenous word into the Australian Constitution, giving it contemporary use in national and political life. What a suggestion! An ancient Indigenous word, in a constitutional amendment guaranteeing forevermore the Indigenous voice in Indigenous affairs.

  Now that we had addressed their rational concerns, these conservatives were turning out to be surprisingly imaginative. Who would have guessed?

  We resolved to meet again in a few weeks. Noel remained mostly silent throughou
t, but in closing offered advice for next steps. Anne should refine the drafting and come up with a solution we all could sign up to, he suggested. I was to work with her. We would then all agree on the words of the amendment.

  ‘Good work,’ Greg said as we left. ‘Very impressive work, Shireen,’ said Julian. Damien and I smiled privately at each other. He emailed me later to confirm that Julian was on board. He was extremely impressed with the solution, Damien said, and was ‘keen to do what he can to help promote the package’ by working with other conservatives and Indigenous leaders.

  I was so elated that I thought I might cry. I did later, on the phone to a friend.

  On 14 July, Noel spoke at a dinner celebrating the fiftieth birthday of The Australian newspaper. His speech was effusive in its praise for the conservative broadsheet and created a splash. The words had their desired effect: conservatives were now paying attention, primed for discussion of constitutional recognition. His inclusive rhetoric drew them in.

  I don’t recall having input into that speech—it was all Noel. I teased him afterwards: ‘That was some serious arse-kissing, Noel!’ He did one of his roaring laughs. ‘And it’s working,’ I said. ‘The response from the right has been positive!’

  ‘You know what they say, Shireen,’ Noel replied. ‘Anyone who says flattery doesn’t work has never been flattered.’

  Most striking in the speech was Noel’s characterisation of the three parts of Australia:

  Our nation is in three parts. There is our ancient heritage, written in the continent and the original culture painted on its land and seascapes. There is our British inheritance, the structures of government and society transported from the United Kingdom fixing its foundations in the ancient soil. There is our multicultural achievement: a triumph of immigration that brought together the gifts of peoples and cultures from all over the globe—forming one indissoluble commonwealth.