Such insights were not lost on the contemporary Tasmanian Aborigines, who, under the leadership of Aboriginal activist and lawyer Michael Mansell, had for years been grappling with various possible mechanisms for First Nations representation within Australia’s constitutional system. Mansell often suggests a separate Aboriginal state and reserved seats in Parliament. There are multiple other ways representation in their affairs could be guaranteed.
The broad message from Hobart was clear: they, like the people at all the following dialogues, wanted substantive constitutional reform. They would not accept symbolism alone, no matter what the politicians were pushing. Some delegates expressed regret at the recent achievement of Indigenous recognition in the Tasmanian Constitution: it was a symbolic mention in the preamble (like in other state constitutions) and gave them nothing of practical benefit. Some said they had voiced concerns about the proposal at the time but had been ignored by government, which pushed ahead regardless, flanked by those Indigenous people who were happy to endorse symbolism. ‘How do we know the same thing won’t happen at the Commonwealth level?’ the delegates wisely asked.
I thought about the question: there is no easy answer. I think the only possible answer is unity, solidarity and a smart strategy, to force government to a better position. Division gives governments an easy way out—they can find the weaknesses and take the path of least resistance. And when I say solidarity, I don’t only mean Indigenous solidarity. Non-Indigenous Australians will also need to show solidarity with their Indigenous fellow citizens. Then, perhaps, government might be forced to listen.
Noel made his position clear to those Tasmanian delegates: constitutional recognition needs to be for the Tasmanians as much as for his own people in Cape York. ‘If it doesn’t work for the Tasmanians, then it won’t work for the rest of us,’ he said. His words built a sense of unity in struggle.
Noel knew how to rally consensus. He was in this for all his people.
As time went on, I began assisting the co-convenors of each meeting to write opinion pieces expressing the key messages from their dialogue. I would listen to the discussion and debate and make notes, then construct a draft reflecting their words. Then I’d seek input from the co-convenors and other leaders, make appropriate changes as requested, and get their final sign-off so the piece could get published. I was accustomed to supporting Indigenous leaders other than Noel with writing work: it was an integral part of my job, a way of using my writing skills to support Indigenous voices, and I enjoyed doing it. It also helped me absorb and understand the messages I was hearing.
The dialogues provided delegates with civics and constitutional education so they were able to discern which models were strong and which were weak. This was an incredible strength of the dialogue process. It allowed Indigenous people to make informed, educated, empowered decisions. Noel, Davis and Anderson didn’t hide the fact that the politicians seemed set on minimalism. The delegates were also aware of the role Recognise had played in pushing a minimalist model.
Things ramped up at the Melbourne dialogue, with some radical-left delegates arguing for a ‘sovereign treaty’ or nothing, and other delegates eager for substantive constitutional reform as well as treaties.
After the Melbourne dialogue in March 2017, co-convenors Jill Gallagher and Jeremy Clark threw down the gauntlet in the Sydney Morning Herald. ‘If the politicians have cooked up a “done deal” for mere minimalism on constitutional recognition, Aboriginal people will say no,’ they declared. ‘Substantive reform, or nothing at all. That was the clear message relayed at the Victorian dialogue in Melbourne this weekend.’ Their opinion piece concluded with ferocity: ‘Any done deal on minimalism is a deal-breaker. It is a deal-breaker that will kill this referendum.’2
The message sent shockwaves out to Parliament. Two days later, the politicians denied it. There was no ‘done deal’ and no ‘politicians’ model’, the Indigenous MPs maintained. ‘There is not, and never has been, any such thing as a politicians’ model for constitutional recognition,’ said Dodson. Wyatt also denied any deal but expressed personal opposition to the Indigenous constitutional body proposal, claiming it would not be supported by Australians (in the same way he had claimed it would not be supported by Indigenous people in years prior—now he was being proven wrong).3
Indigenous people fought on, rejecting minimalism and calling for a constitutional body.
Drawing on their experience of the Northern Territory Intervention, the co-convenors of the Ross River dialogue in April rejected a minimalist approach in The Guardian, demonstrating their civics education. ‘The intervention was an exercise of the territories power, not the race power,’ they wrote, which is why ‘we Territorians understand that a minimalist model—removing references to “race”, tinkering with the race power and inserting some symbolic words—would be pointless. Without a substantive constitutional guarantee like a racial non-discrimination clause or a constitutionally mandated First Peoples body, it’s just pretend change.’ So much for Tudge’s claim that Indigenous people wouldn’t know what’s in the Constitution—they could learn.
The delegates accordingly rejected the ‘Recognise “racism out, recognition in” slogan’ because, they explained, ‘removing section 25 and amending the race power is a superficial, cosmetic change … not real reform. The proposed section 51A power might contain some nice words which tell a good story, but it is basically just the race power dressed up in fancy clothes and wearing a frilly symbolic hat. Our people see past the disguise. We are not fooled.’4
This was Indigenous empowerment in action. Delegates had successfully dissected Recognise’s ‘racism out, recognition in’ catchphrase and were rejecting the minimalist model it represented. I knew the genesis of the catchphrase: it had come from Liberal Party pollster Mark Textor, who had used it at a Recognise conference I attended—the same event where I’d heard him subtly disparaging the Indigenous body proposal being pushed by Noel and Marcia. I previously mentioned Textor’s comment that ‘there are more than just two Indigenous leaders in this country’. It was now clear to me that this classic divide-and-conquer remark was his subtle attempt at undermining the leaders who were pushing against minimalism.
Yet the dialogues were proving that Textor had been dead right, in fact: there weren’t just two. There were hundreds, indeed thousands, of influential Indigenous leaders—they’d all caught on to what the pollsters were up to and were now making their voices heard. As Gallagher and Nolan pointed out, the ‘racism out, recognition in’ slogan ‘sounds substantive, but it isn’t … Removing the word “race” doesn’t prevent racism. Nor does it prevent Parliament being able to make racist laws.’5 They were fully clued in.
After the Adelaide dialogue, co-convenors Cheryl Axleby and Klynton Wanganeen wrote in The Guardian to join in on the rejection of minimalism, ‘like our counterparts across the country’, they said. ‘We all want a bit of blackness in this country’s white document—but not just for symbolic effect. We want this reform to make black lives better. Otherwise what’s the point?’ They offered sound strategic justification for their position: ‘If we go for a weak option, we will never have another go in this lifetime.’6
At each dialogue, the proposed Indigenous voice in the Constitution was identified as the preferred reform. Perth delegates spoke of feeling invisible to bureaucracies and politicians and of lacking a political voice and power. The proposed Indigenous body should be representative of First Nations lands and waters across Australia, underpinned by First Nations cultural authority, they suggested.
Through the dialogue process, stories of history, bloodshed and injustice affected everyone involved. Cairns delegates in particular spoke powerfully about past discrimination at the hands of government in Far North Queensland. Their stories were harrowing. I listened, and helped them draft an article to reflect their shared pain. Co-convenor Terry O’Shane unexpectedly read the resulting draft to the entire room, to obtain their endorsement. He ch
oked up as he read it, and Megan told me later many people were crying. The draft was resoundingly endorsed for the story it shared, and was published by Kaylene Malthouse and Terry in The Australian.
I repeat its words here, because this story should be read by all Australians. ‘On 15 November 1963, the Queensland Police forcibly removed Aboriginal residents of the Cape York community of Mapoon and relocated them to Bamaga, 200 kilometres north,’ Terry read. ‘They were taken away on a barge and their homes burnt down. The people of Mapoon had said they didn’t want to move. The government didn’t listen. They thought they knew what was best for our people and made decisions accordingly. Force prevailed over what was fair. First Peoples voices were not heard … Similar memories are etched across Queensland and across each corner of our continent … It is this shared history that drives our people’s resolve for real change, as well as the common struggles of our present which unite us with common purpose.’ With tears in his eyes Terry concluded: ‘Constitutional recognition can begin a new chapter in the shared story of this country. It is an opportunity to put in place substantive constitutional reform, to help ensure that past wrongs don’t happen again.’7
Their passion and empathy were overwhelming. These people had endured immense suffering, had survived, and were responding with deep and resilient hope. They wanted to heal themselves, but also heal the country. Given this history, was a voice in decisions made about them really too much to ask? I fought back my own tears and wished hard that they might win their modest desired reform. I also wished the Indigenous politicians, and Turnbull and Shorten, had been there to hear it. I understand they were invited to the dialogues, but never came.
Listening to Terry, I recalled Twiggy Forrest, who had sat next to Christian Porter, Nolan Hunter, Ben Wyatt, Indigenous Labor member in the West Australian assembly, and me on the Perth launch panel back in February. Twiggy listened to Porter’s negative comments about the proposed constitutional body and, to my great relief, did not agree. He backed the modest reform Indigenous people were rallying behind in the unfolding dialogues. ‘It doesn’t seem like much to ask, to consult with Indigenous people,’ he told the room, contradicting Porter. Sorting the wheat from the chaff.
Twiggy was a direct descendant of one of the original founders of Australia’s Constitution. He was a conservative with a personal and historical stake in upholding the Constitution.
If Twiggy could be persuaded, then surely many decent Australians could be too. And if decent Australians could be persuaded, what right did these politicians have to claim the people would reject a just proposal, and to deny them their fair say?
On 26 May 2017, the day before the fiftieth anniversary of the 1967 referendum, First Nations aspirations from across the country coalesced at a historic gathering in the spiritual heart of Australia, at Uluru. Under the rock’s majestic shadow, the opening ceremony took place: the Gumatj of Arnhem Land danced, the Kaurareg of the Torres Strait sang homage to their shark constellation, and the Anangu people of Uluru wished the delegations full strength in their pursuit of a fair place in this ancient country.
The three days of deliberations, the culmination of the regional dialogues held all across the country, were ambitious yet pragmatic. These people had dealt with structural powerlessness for the past 200-plus years and carried the strategic tenacity of those accustomed to dealing with the unilateral exercise of government power over their affairs. The 250-odd gathering achieved a powerful majority consensus.
All regions rejected minimalism or mere symbolism in favour of substantive reform. All wanted to take responsibility and exercise increased authority in their affairs. All wanted a ‘First Nations voice in the Constitution’, a representative institution constitutionally empowered to have a say in political decision-making affecting their communities. A First Nations voice to Parliament. All wanted a just settlement—a Makarrata Commission, set up in legislation, to undertake treaty-making and truth-telling about history. (Makarrata is a Yolngu word meaning ‘coming together after a struggle’.) This was the culmination of decades of Indigenous advocacy calling for political representation and empowerment.
There were of course dissenters—seven people walked out of Uluru (citing concerns about giving up their sovereignty), which is to be expected, because no group can reach agreement without first sorting out their disagreements. Dissent is a logical and necessary part of human beings finding a majority consensus position. And frankly, I find it ridiculous when people expect Indigenous Australians to always agree—as if a minority ethnic group can’t have a diversity of views like everybody else. Come to my Indian family Christmas if you want to see some proper intra-ethnic disagreement, then mull over the enormity of what Indigenous people achieved at Uluru.
The Uluru Statement from the Heart offered Australia a way to resolve the fundamental moral problem that has troubled our country since 1788. In forming this consensus, Indigenous people did what everybody said they couldn’t. They did what the politicians had asked for: they spoke with one voice. They did the work, canvassed the views, mediated the dissent and achieved their consensus position.
It was a historic moment.
The Uluru Statement wisely moved away from a racial non-discrimination clause, which had been proposed by the Expert Panel in 2012 but was rejected by politicians as a ‘one-clause bill of rights’ and did not win the bipartisan support necessary for a referendum. As noted, a similar clause hadn’t won political consensus prior to 1967, when it was proposed by Liberal MP Billy Wentworth. Back then, the government did not want to give up its power to the High Court, and exactly the same arguments hold sway today. One only needs look at constitutional history to see how smart Indigenous delegates were in adopting this approach. No attempts at inserting new rights clauses into the Constitution have ever succeeded at referendum, and Australia can’t even manage to implement a legislated federal bill of rights, let alone a new constitutional rights clause.
Moving away from a rights clause, from a judicial, High Court solution, to a proactive political, participatory solution, was an intelligent move on the part of Indigenous leaders. It is also deeply in keeping with the decades of Indigenous advocacy for increased self-determination, representation and authority in their affairs.
The other smart thing the Uluru Statement achieved was to step away from uncertain symbolism in the Constitution, which constitutional conservatives warn would yield unintended consequences—but which, more importantly, Indigenous people themselves realised would make no practical difference to their lives, so why bother? It stepped away from simply cleaning up the race clauses, which on its own would fix nothing of substance. Because without a proper racial non-discrimination clause, simply removing the word ‘race’ from the Constitution would not prevent Parliament from being able to enact racist laws. The delegates at the dialogues understood this fact. They also understood the political blockages to a racial non-discrimination clause, and accordingly chose to make only one substantive recommendation for constitutional reform: a First Nations voice, which might hopefully prevent discriminatory laws.
The Uluru Statement is full of passion. It is written in inspiring and emotional prose. I urge every Australian to read it. But it is also pragmatic and politically hard-headed. It proposes a practical and modest reform. It asks not for a veto, but a voice. It is a generous and constitutionally conservative proposal. The First Nations achieved this.
Yet after Uluru, Mark Textor sent an angry text to some Indigenous leaders, suggesting that Noel had killed the recognition referendum by advocating an Indigenous constitutional body. Though we tried to prevent it, the text ended up with journalists at The Australian who later reported that Textor was furious with the Uluru outcome. They also reported the quiet demise of Recognise, which could not withstand the criticism emanating from the dialogues.8
No doubt Textor was imparting his negative view on Uluru to his Liberal Party colleagues.
The Referendum Council report,
delivered in June 2017, backed up the Uluru Statement. It called for a constitutionally guaranteed Indigenous advisory body and added the idea of a Declaration, outside the Constitution, to recognise the three parts of our national story. Practical reform to establish a voice within the Constitution. Symbolic language outside the Constitution.
This report was remarkable and unprecedented: it was the first report on Indigenous recognition that intelligently melded constitutional imagination with constitutional conservatism.
It is truly a ‘radical centre’ report.
For if it takes progressives to imagine how the future can be better than the past, it takes conservatives to discern how to make things better while upholding tradition and respecting our evolved democratic institutions. The Referendum Council did both. This was constitutional imagination firmly grounded in constitutional tradition. The proposal for a First Nations voice in the Constitution was the result of years of searching for the common ground. The Referendum Council found it: a way to achieve Indigenous aspirations for substantive, empowering reform, while upholding the Constitution.
There is a reason arch constitutional conservative Julian Leeser—that Constitution-clutching, rulebook-defending, unelected-judge-judging nerdus maximus who ran so many ‘No’ cases in the past, against the republic referendum (defeating Turnbull, Keating and other republicans), against a bill of rights (defeating Frank Brennan and the human rights lawyers) and against the push for local government recognition (defeating Gillard and the Local Government Association)—is an ally and not a foe on this issue. Julian supported the Uluru Statement and its call for an Indigenous voice in the Constitution because he says it is ‘the kind of clause Griffith, Barton and their colleagues might have drafted, had they turned their minds to it’.9
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