Radical Heart

by Shireen Morris

  After Turnbull’s rejection of the Uluru Statement, I called out Porter’s unprincipled shifting of views on Indigenous recognition, as well as the fickleness of other politicians including Turnbull and Abbott, in an article for The Guardian.2 A month later, Porter wrote me an extraordinary personal letter that tried to rewrite history: he said he had never supported an Indigenous constitutional body and even tried to suggest he had never been aware of the proposal—a ludicrous claim. On 7 December 2017, I replied with a comprehensive recounting of the facts that exposed his claims as untrue.3 In the letter I explained that I had written The Guardian piece because ‘Australians needed to know about the duplicity of their elected leaders in this matter. The fickleness and lies needed to be called out.’ My letter was pointed:

  Minister, it was open to you to stand by your principles as a constitutional conservative, to stand up for Indigenous people, and to stand by your support for an Indigenous body in the Constitution as an ‘elegant solution’ and ‘the least worst option’. You chose to toe Turnbull’s minimalist line instead. You hedged your bets, moving from support to opposition according to your calculations concerning your political advancement.

  One cannot claim to have the convictions of a constitutional conservative, or even a conservative, without demonstrating a principled willingness to stand by one’s convictions. Whatever your long-term ambition to lead this country, your leadership was exposed to a basic moral shortcoming in this sorry episode.

  Later that same month, Porter was elevated by Turnbull to the position of attorney-general. Turnbull’s opposition was strangling the political support we had built.

  Tim Wilson, at the Parliament House event with Rachel Perkins and Chris Kenny, had commented that he had his own ideas about how to achieve constitutional recognition of Indigenous voices. Damien followed up, and Wilson subsequently worked with him on a paper to be published by Uphold & Recognise that argued for a constitutional amendment recognising local First Nations bodies rather than a national Indigenous body. We welcomed Wilson’s input—it was a way of broadening the debate and building wider consensus on the right. That Wilson was ex-IPA and a self-described constitutional liberal was significant. We had Julian Leeser’s support, a young constitutional conservative. Now we were working constructively with Wilson, a young constitutional liberal, to incorporate his ideas. Uphold & Recognise was preparing to publish Wilson’s essay to coincide with the final Indigenous constitutional convention at Uluru.

  Wilson did not end up publishing that paper. My guess is that Turnbull’s opposition to our approach was probably a factor.

  As it happened, Damien and Nolan ran into Warren Mundine on one of their Parliament House lobbying trips. Mundine previously had opposed our proposal for an Indigenous constitutional body, just like he opposed a racial non-discrimination clause. In 2015 he declared to Chris Kenny on Sky News that an Indigenous advisory body was unnecessary—even though Mundine himself was then chair of the government’s Indigenous Advisory Council. ‘I have a legislative body already,’ Mundine had said, though no legislative body was proposed—the proposal was for an advisory body. ‘It’s called the NSW Parliament, it’s called the Commonwealth Parliament. I get the chance to vote in elections for those parliaments that make decisions. We’ve had more Aborigines going into state and federal parliament than ever before.’4 Right-wing commentator Greg Sheridan at The Australian, in an opinion piece heaving with hyperbole (and multiple uses of the word ‘magnificent’), profusely commended Mundine’s opposition. ‘I agree with Mundine that Pearson’s proposals are dangerous, unpredictable in their consequences and offend basic liberal principles,’ he wrote.5 Sheridan was a self-proclaimed ‘old-fashioned liberal on race’, ostensibly a champion of equality but, like the IPA, he would quote Martin Luther King Jnr’s equality rhetoric while hypocritically opposing any equality guarantee in the Constitution.6 I met with Sheridan in 2016, on Kenny’s advice, and we had a long and exhausting conversation. Sheridan commended Noel and me for our ‘shrewd’ and clever approach with conservatives, but I was totally unable to move him.

  Mundine, however, after running into Damien and Nolan at Parliament House while the dialogues were underway, seemed to slowly find more affinity with the Uphold & Recognise approach. He was also inspired by Wilson’s work on the idea of constitutionalising First Nations local bodies. Mundine then worked with Damien to publish an essay building on these ideas and spoke to the proposals at an Uphold & Recognise event in Melbourne in May 2017. He said he was coming around to our approach, and his essay advocated recognising First Nations local voices in the Constitution. Wilson was on the panel too, and spoke positively about the need for the First Nations to have their voices heard, endorsing Mundine’s paper, an excerpt of which was published in The Australian.7 Noel also spoke. I sat in the audience, pleased that Mundine had given serious thought to the issue, and was coming round.

  Though his growing support for a constitutional voice or voices wavered after the final Uluru convention, Mundine agreed to publish his essay advocating for constitutional recognition of First Nations bodies in another collection I was editing called A Rightful Place.

  I didn’t blame Mundine for wavering. Who wouldn’t waver in their support for a First Nations voice in the Constitution, faced with Turnbull’s decree for it to die? Mundine’s enthusiasm for the proposal grew, however. Like so many others, he slowly came around to the logic of what was a modest and sensible idea.

  As the dialogues were unfolding, Rachel Perkins, Damien and I met with Tony Abbott. Noting the strong support being expressed by Indigenous people through the dialogues for an Indigenous constitutional voice, Abbott told us he didn’t have a problem with the advisory body proposal. He verbally took us through the arguments for and against, as if thinking out loud, then (yet again) suggested how the constitutional drafting could be improved. This was his strongest support yet. He had shifted a lot.

  After the final Uluru convention, Abbott had breakfast with Noel and me in Canberra. ‘Well done,’ he said earnestly, referring to the Uluru consensus for an Indigenous voice, looking us both in the eyes as we ate our poached eggs. He said again that he had no issue with the Indigenous body proposal, and again suggested some more modest drafting, to which we nodded amenably. We asked him to come out publicly and support the proposal, to give Turnbull the cover he needed to lead on this reform. Abbott said he’d think about it. We never heard back.

  A few months later, when Turnbull rejected the Uluru Statement from the Heart and the proposed Indigenous voice to Parliament, Abbott backed him—probably the only time he ever has.

  As prime minister, Abbott had urged the ‘con cons’, and Noel and me, to help him build the necessary support on the political right for the proposals—an Indigenous body within the Constitution, a Declaration outside it. We tried our best to do so, and with hard work and perseverance that support had slowly grown. Abbott never helped us one bit.

  Then after the spill, Turnbull used his power not to help build support for substantive change, but to ensure his ‘snowflake’s chance in hell’ prediction played out as reality. His secret instructions tried to squash the support we had been trying to build.

  The Indigenous advisory body in the Constitution was a good reform proposal that would improve the system and empower the First Nations, and so government wanted it destroyed, preferring instead to back a bad proposal that would maintain the failing status quo of the Indigenous affairs system and keep Indigenous people in their place. They backed minimalism.

  Noel and I co-authored a legal article for the Australian Law Journal in 2017 in the lead-up to Uluru that set out what a minimalist approach means:

  Under this approach, symbolic words would be inserted and outdated references to ‘race’ might be removed from the Constitution, but its processes, rules and power dynamics would remain the same. In a sense, the aim is the insertion of a ‘plaque’: an emblematic statement that can be viewed with pride, but which c
ontains no moving parts—or no intended moving parts. In essence: words of recognition, but ‘business as usual’ in the legal and political systems governing Indigenous affairs under the Constitution.

  The distinction between words and systems is critical. It is the difference between surface and substance, between painting a squeaky bicycle to improve its appearance, and fixing its wheels so that it runs more smoothly.8

  A minimalist model meant flowery words and cosmetic tinkering with the ‘race’ clauses. A mere ‘mention’ that Indigenous people were here first, perhaps symbolic recognition of their land, culture, language, which changes nothing of substance but probably appeases some white guilt. The constitutional status quo, stamped with some feel-good fluff. Boomerangs and bullshit, in other words. Brolgas in the wetlands, blah blah blah.

  It wasn’t what Indigenous people wanted, and they were going to fight back. They would have their voices heard, whether government liked it or not.

  12

  The Uluru Statement from the Heart

  HOW LIKELY WOULD it be for snow to fall at Uluru? Or not even a snowfall: just a single, delicate snowflake, crystallising in an intricate symmetry of icy patterns and woven webs? Could those frozen particles come together, stick together and solidify, despite the oppressive heat at our nation’s baking rock? One would expect a snowflake to melt in that hellish desert. Evaporate into hot air and return to the sky, a forgotten dream.

  A snowflake surviving at Uluru would be about as likely, say, as 250-odd First Nations representatives—chosen by their own people in their regions around Australia, hailing from different language groups and clans, bringing different traditions and ways of life, different politics and ideologies, spanning urban, regional and remote, north and south, carrying different allegiances and objectives, and harbouring a decent spattering of anti-Noel prejudice on top of it all—coming together and rising above their differences to form a united, national consensus on how they want to change Australia’s Constitution to guarantee their people a fairer go than in the past.

  I previously thought that Indigenous people ever forming such a consensus had a snowflake’s chance in fiery, devil-poking hell of happening. The petitions, letters and advocacy of the past always tended to emanate from a particular region or First Nation. Never before had there been a national Indigenous position on constitutional recognition. Yet in May 2017 they achieved just that. The First Nations of Australia got organised, stood together and asked for a single constitutional reform: a voice in their affairs.

  They formed a precious snowflake at the nation’s great red rock, our country’s spiritual heart and cultural hearth.

  They sent the snowflake to Canberra, where it was rejected and directed to die. Not in the desert, but in a cold-hearted hell of Turnbull’s creation.

  I can’t tell the full story of the First Nations regional dialogues and their historic culmination at Uluru in May 2017. The tireless Indigenous leaders who ran them and participated, not least the courageous Megan Davis and Pat Anderson, who organised and led the unprecedented discussions in the toughest of circumstances and with little support—they are better placed than me to tell that detail. I offer here only my own reflections on what I saw and heard from the outside looking in, and how I felt watching the seminal discussions unfold.

  I travelled around as an observer to most of the regional dialogues on Noel’s instructions. They were extraordinary and detailed, passionate and groundbreaking.

  The First Nations in the 1800s were wrongfully excluded from the constitutional negotiations that created the Commonwealth. Now they were getting the belated opportunity to have their say on how they thought the Constitution should be reformed to recognise, include and empower them. It was history in the making. I felt privileged to see it unfold.

  The trial dialogue in Melbourne, held in November 2016, saw Indigenous leaders from around the nation gather to prepare for the dialogues in their local regions. For most of that weekend at the Melbourne University Law School, I listened to Indigenous advocates from all corners of the country rally and rouse each other. It was inspiring—the start of several arduous months of endless travel and lost weekends undertaken by Anderson, Davis, and Davis’s team of dedicated lawyers and helpers.

  Even in the trial dialogue, passions began to flow. Rachel Perkins stood and eloquently explained how the Constitution provides the sole means to achieve enduring reform—reform that cannot be struck down on a government whim. An old man from the Torres Strait orated like a preacher: We need to put our voice in the Constitution! We gotta lock it in and throw away the key!

  Terry O’Shane, a hardworking unionist from Queensland, urged the mob to get it done, to go for it, to make change happen. He wanted to see recognition happen while he was alive. Young up-and-coming black lawyers sat and listened, not missing a trick; they piped up at various points in the conversation. One of them, Teela Reid from the University of NSW, who would powerfully challenge Turnbull’s rejection of the Uluru Statement on Q&A the following year, seemed to absorb the ambition of the elders as they spoke. She was an intelligent future leader. The formidable Davis stood regularly to provide insights on constitutional law: I could see she was the pride of her people. During the dialogues, I watched her come into her own as one of Australia’s most impressive Indigenous leaders. Anderson provided calm moral guidance, bringing wisdom and experience that settled the room and offered direction.

  I watched them all in quiet awe, and thought of Tudge’s quip that there were no impressive Indigenous leaders who could sit on an effective advisory body. How wrong he was.

  The discussion allowed for healthy scepticism and caution to meld with enthusiasm and ambition. These were smart and hardworking people who knew about politics and the difficulties and risks, but who were willing to do the work to change Australia for the better.

  It was the impressive young Maritime Union of Australia branch secretary Thomas Mayor from Darwin, drawing on his experience as a union battler, who gave the advice that galvanised the room. ‘We need to organise to win,’ he said. The older advocates stood and reiterated his sentiment. They would not passively concede defeat, nor would they quietly accept whatever minimalist crumbs government was offering. They resolved to organise to win, despite Turnbull’s secret instructions.

  The dialogues were a vehicle for unity. As these leaders knew: in unity, there is power.

  The dialogues proper kicked off in Hobart in December 2016. It was apt. The conversation began in earnest where Aboriginal people had suffered the worst and where the destruction wrought by colonisation had perhaps been the most unrelenting. Noel writes of this harrowing chapter of Australia’s colonial history in A Rightful Place. I’d read his words, but had never been to the island.

  The quaint colonial seafront, the harbour with its fish shops and sleepy streets created a strange environment from within which to think about the task at hand. I could see no obvious traces of the ‘war of the worlds’ that, as Noel described, had played out centuries prior. The past seemed covered over by a picturesque calm—the memory of slaughter disguised by architecture reminiscent of England by the sea. Not for the survivors of that violence, I suppose, who I’m sure could never forget.

  ‘Was this what thousands of Aboriginal lives made way for?’ Noel wondered out loud as we crossed the street from the hotel to the water. I knew what he meant. There was no churning metropolis to show for the bloodshed. No tall city standing above the buried bodies of the last ‘full-blood’ Tasmanian Aborigines. Instead, Truganini and her ancestors had been almost wiped out for a seaside village and a handful of boats, for producers of great wine and seafood. The prettiness of Hobart made comprehending the bloody history difficult.

  I reflected that this tiny island is today guaranteed twelve senators—an equal voice—under the Australian Constitution. The prize for the almost-annihilation of the Tasmanian Aborigines was successful negotiation by Tasmanian colonial representatives securing equal represe
ntation for the former colony in the Australian Senate. The constitutional compact guarantees Tasmanian Australians, Tasmania being the least populated state, a proportionately greater say in the government of the nation than citizens anywhere else on the continent. Nothing spoke more to the purpose and challenge of Indigenous constitutional recognition than the unjust incongruence of this bizarre fact: the Tasmanian colony that had overseen the most effective attempted Aboriginal genocide in the country had also won for its residents the strongest proportional voice in the federation. To say it seemed unjust feels like an understatement.

  If it is fair that Tasmania has special representation in the constitutional compact in recognition of its distinct historical and political status, its identity as a former colony and its ongoing political identity as a state—which Australians accept without question—then surely it is fair, too, that the original peoples of this land should also be recognised and represented in their affairs. Having survived the impacts of colonisation and continued as distinct identities within the Commonwealth, the First Nations also should have a voice within the Constitution, at least in relation to the political decisions made by the parliamentary majority in respect of their distinct Indigenous rights and interests. ‘We live in a country that gives 500,000 Tasmanians 12 senators inside the Commonwealth parliament according to a Federation deal struck in the Australian Constitution in 1901,’ Noel, Davis and Anderson told The Australian in February 2018, challenging the prime minister’s continued rejection of the call for a voice. ‘And yet 117 years later do we seriously think the Australian people would reject the proposition that 600,000 indigenous Australians should not have a constitutionally recognised body outside of the Commonwealth parliament? If they did then the country would not be serious about recognition.’1