Radical Heart

by Shireen Morris

  We stand on the cusp of bringing these three parts of our national story together: our ancient heritage, our British inheritance and our multicultural triumph, with constitutional recognition of Indigenous Australians. This reconciliation will make a more complete commonwealth.

  We stand in good stead. Never has the time been more propitious. The planets are moving into alignment. With a large enough lever, we can even nudge the stars.1

  Noel drove home the message that this was not about recognising one group—this was about recognising each other. Mutual recognition, bringing Australians together. Uniting the nation.

  Afterwards, he got an email from Tim Wilson, an Institute of Public Affairs (IPA) right-wing Liberal who had become a human rights commissioner; he had been dubbed ‘Freedom Commissioner’ at the Human Rights Commission after being appointed by George Brandis to ‘rebalance’ the discourse by defending ‘classical human rights’ such as free speech. The IPA wanted to get rid of, or at least water down, section 18C of the Racial Discrimination Act (in order to give greater freedom to bigots, according to Brandis’s unwise characterisation). The IPA was also stridently opposed to Indigenous recognition.

  True to his IPA platform, Wilson was also an advocate for amending section 18C to bolster free speech at the expense of protection from racial vilification. When it came to racial vilification law, we were opponents: I wrote CYI’s submission to the 18C parliamentary inquiry, opposing any repeal or watering-down of current protections.

  Because of his stance on such issues, Wilson was commonly assumed to be an enemy of Indigenous rights. His email to Noel, however, indicated that he might not be as hard-hearted as his IPA colleagues. He praised Noel’s speech as ‘exceptional’. On property rights, too, he supported stronger rights for Indigenous people. As ‘Freedom Commissioner’, he was working with Mick Gooda and other Indigenous leaders, including Noel and Patrick Dodson, to discuss how to strengthen Indigenous property rights. Perhaps there was more compassion in him than people assumed.

  In the following years, Wilson became a supporter of Indigenous constitutional recognition. He later worked with Damien and me to produce an essay on an extra-constitutional Declaration for our 2016 essay collection, The Forgotten People. And behind the scenes, he began putting forward his own constitutional drafting ideas for how to recognise First Nations voices, urging that the Constitution should guarantee local Indigenous bodies, rather than a national body.

  In our engagement I got the sense that Wilson, as a gay man, had more empathy for Indigenous struggles for recognition and equality than some of his right-wing counterparts. Noel’s characterisation of the recognition project being about unity rather than division ignited Wilson’s liberal instincts. He was also moved by the inclusive comments made by Rachel Perkins, filmmaker and daughter of ‘freedom rides’ activist Charlie Perkins, at a dinner run by Recognise. And, just as the Jews could relate to the history of discrimination and exclusion Indigenous people shared, so too, it seemed, could some gay people. Empathy, I was discovering, was the key. Without it, common ground remained elusive.

  It felt like the planets were indeed aligning. The journalists and editors at The Australian were glowing from Noel’s praise. After the workshop, the ‘con cons’ were coming on board. And now a hard-right Liberal had reached out to constructively join the conversation. It increasingly seemed that good-hearted conservatives and liberals could be persuaded with the right combination of respect, noble compromise and, yes, flattery.

  Crucially, we hadn’t stepped right only to slide down into minimalism. We were still aiming high. We’d stepped right and were shooting for the stars.

  Noel was madly drafting his Quarterly Essay, to be launched in September. It would float the idea of an Indigenous body in the Constitution publicly for the first time. I was helping with some writing and editing.

  Anne, Julian, Damien and I were refining the drafting of the constitutional amendment over email—by this stage Damien was away lecturing in aesthetic philosophy at Cambridge University, his yearly stint. A second workshop was held on 15 August 2014. Updated wording was critiqued by the group. Discussions ramped up in the lead-up to a group meeting with Abbott to present our ideas. We wanted the drafting finalised by then.

  I developed a paper that sought to draw out the constitutional issues for resolution. It canvassed, in excruciating detail, the concerns of each expert in relation to each version of the proposed amendment. We needed to agree on every word, comma and semi-colon.

  I was grappling in particular with a version that included, at Julian and Greg’s insistence, versions of a ‘non-justiciability’ or ‘no legal effect’ clause. Julian was digging his heels in about it because of his deep-seated High Court paranoia. The group, aware of the need to keep him signed up, was thus contemplating a subsection along the lines of: ‘A failure to comply with this Chapter in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.’

  The proposed section was grating on me, and I sensed it would be a make-or-break issue. Through this drafting process, I saw myself as the lawyer representing Noel, acting on his instructions and trying to secure the best deal for him and, by extension, his people. So I decided to push back. I told Noel I didn’t like the clause, and he agreed, then I rang Anne to discuss it. ‘It seems disingenuous,’ I said. ‘Other constitutional clauses don’t include such expressions of bad faith. Why does this clause need to? Isn’t there another way?’ She went away to think about it.

  I also raised the concern strategically in the paper. With Noel’s advice, we framed it as a concern of the Indigenous constituency, who we needed to keep on board, so that Julian and Greg wouldn’t try too hard to persuade us otherwise—a ‘no legal effect’ clause simply wouldn’t fly with the mob was the angle. It is a common tactic in attempts at law reform—verballing various constituencies, when actually you don’t really know what they think until it’s been properly tested. Politicians do it all the time. (Note how, in 2017, Tony Abbott claimed his opposition to same-sex marriage reflected the position of the ‘silent majority’. When the postal survey results came back, his own electorate demonstrated 75 per cent support for same-sex marriage. Malcolm Turnbull would similarly verbal the Australian people that year, claiming they wouldn’t accept an Indigenous voice in the Constitution, a concept that had by that time gained serious Indigenous and non-Indigenous support.) Us declaring that Indigenous people wouldn’t accept a ‘no legal effect’ clause was the same annoying ‘it won’t fly’ political prediction roadblock that objectors like Greg had used on us in relation to a racial non-discrimination clause. Now we were using it on them, in order to nut out the best constitutional amendment possible for Indigenous people. I was enjoying the karma.

  Our political prediction was correct too, however, and supported by strong evidence. Noel knew the Indigenous constituency well, and we’d run Cape York workshops and summits testing our revised ideas. Plus, the Expert Panel after its consultation had found that a ‘no legal effect’ clause (for a preamble) would not be accepted by Indigenous people because it was viewed as tokenistic. While we had a good sense that Indigenous people would likely be attracted to a constitutional voice as a vehicle for self-determination, we also knew that if the whole thing became too weak we would probably lose them. This reform had to be modest enough for conservatives, but also substantive and meaningful enough for Indigenous people. The constitutional drafting was all about balancing the competing concerns. It had to be strong yet sensible. Empowering yet practically workable. Modest yet profound.

  In the end, our objection to a ‘no legal effect’ clause was accepted by the ‘con cons’ with little fuss. Julian immediately attempted redrafting the clause to take on board our feedback. He also advised that the Indigenous-body amendment should be up the front of the Constitution, not hidden away at the back. These conservatives were perpetually surprising: once they were o
n board, they were bold about it.

  By this stage we were playing with the name ‘Delak’ (sometimes spelt ‘Dilak’), a Yolngu word that had been used by Galarrwuy Yunupingu’s people in their petition to Prime Minister Kevin Rudd calling for ‘serious constitutional reform’. The word meant ‘council of elders’. We had sought preliminary permission to use it privately in our drafts, but it didn’t make it into any final public versions for fear it might be controversial. As a concept, I felt it worked. I still think incorporating an Indigenous language name for the Indigenous body is a great idea, if people can agree on what word or words to use.

  Finally Anne came up with the breakthrough draft amendment. She emailed me on 22 August to tell me she had cracked the non-justiciability problem. My question to her—why do we have to have a non-justiciability clause when none of the other constitutional provisions have one—had triggered something in her vast reservoir of constitutional knowledge. She realised that sections 53 and 54 of the Constitution are considered non-justiciable without any express clause specifying so, due to the terminology used—‘proposed law’, rather than ‘law’. It indicated that these clauses concerned the internal workings of the Houses: matters for Parliament to manage, not the High Court. Anne used the ‘proposed law’ terminology to construct a provision that would be non-justiciable without an ugly express clause saying so.

  Her final drafting, a new Chapter 1A establishing an Indigenous advisory body, was agreed to by the group and made public in 2015, with only slight variations:

  60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

  (2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].

  (3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.

  (4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.2

  As Anne explained, the non-justiciability of the draft amendment meant that whether advice was tabled, whether it was considered, and whether advice could be given on particular matters were all issues for Parliament, not the High Court. Anne had also eliminated any risk of parliamentary delay. Under this proposal, the group was confident that parliamentary supremacy would be totally upheld, and High Court uncertainty eliminated.

  Noel and I met with professors Marcia Langton and Megan Davis to ascertain their views on the proposals. We hoped they too would be part of the coalition, to engage in further refinement of the package and to own and champion the proposals. We knew it was important that this reform be advocated by Indigenous leaders other than just Noel. Though we had received very positive feedback from the Cape York people we’d spoken to, there were no resources available to consult around the country with Indigenous people (at least not yet). Ventilating the idea with Davis and Langton was a good start.

  They responded cautiously at first, but considered the proposal with open minds. Davis immediately set to work applying her sharp constitutional mind to the idea. Though she wasn’t immediately sold on the example drafting, she came to view the concept as a robust and attractive reform that would empower Indigenous people with a much-needed voice in the policy process, and help Australia to implement the principles of the UN Declaration on the Rights of Indigenous Peoples, which emphasised the importance of Indigenous consultation, political participation and self-determination in decisions made about them. From her extensive international law experience with the United Nations, Megan knew of many examples of other countries where Indigenous political representation and mechanisms for consultation had worked well to ensure the Indigenous voice was more effectively heard by settler democratic systems. She added academic rigour to our discussions.

  Langton and Davis came with us to a third meeting with Greg, Julian and Anne on 10 September 2014 (Damien was still in the UK, following the process closely via emails with me). I tended to always run these workshops, and was nervous about how the two professors might react to the role I was playing. I raised my concern with Noel. ‘I think it’d be better if you run this meeting,’ I said.

  ‘No, you run it,’ he replied dismissively. I later realised that he consistently chose to take a back seat in these workshops so he could retain the authoritative effect of his sparsely chosen words and interventions. It meant that when he pressed a point, it had impact. I was the frontline; Noel was the heavy artillery. It was a way of saving up his powerful influence for when it was really needed. In the same way, he left me to prosecute the constitutional detail while he kept his eye on the strategic big picture. We worked well as a team in this way.

  I ran the workshop as per usual. Anne explained her drafting logically and concisely. Amazingly, we obtained endorsement from the wider group on the proposed constitutional drafting, without a ‘no legal effect’ clause. Even Julian agreed this practical machinery clause, to guarantee Indigenous people a voice in their affairs, was a safe and sensible solution. More safe than inserting a racial non-discrimination clause. More safe than inserting symbolic words that the High Court could misuse.

  The ‘con con’ alliance was forged.

  It was settled that a group letter explaining the proposal would be written to Abbott and signed by all present. Then the group would attend a meeting with the prime minister at Parliament House to make the case for the reforms.

  On 11 September, Noel launched his Quarterly Essay, A Rightful Place, at the Sydney Opera House and floated publicly, for the first time, his shift in position. It was big news. Noel Pearson no longer advocated a racial non-discrimination clause, which we had pushed since 2011. He was now advocating an Indigenous constitutional voice, in the form of a constitutionally guaranteed advisory body to Parliament. The landmark essay described his engagement with the ‘con cons’ and the noble compromise position that had been reached.

  There was an immediate negative response—not from the public, but from government. Indigenous Liberal MP Ken Wyatt, who was by now chairing a parliamentary joint select committee on the issue, didn’t appreciate Noel’s intervention and told the press Noel should make a submission to the committee ‘like everybody else’.3 Don’t step out of line and propose new ideas was the clear message. Once again, we were being told to submit.

  It was an oddly authoritarian response from Wyatt. Since when did politicians reprimand civilians for expressing ideas? As Noel commented later in The Australian, it was ‘as though blackfellas can’t write an essay without permission. Did Wyatt want to proofread my essay to ensure it was aligned with his Liberal Party line?’4

  Stranger still was the fact that when a white lawyer, Father Frank Brennan, later promoted his book, No Small Change, which argued only for minimalism—it opposed a racial non-discrimination clause and an Indigenous constitutional body—government representatives did not complain. Nor did they tell him to make a submission ‘like everybody else’. It seemed odd that an Indigenous leader’s public ideas were chastised, yet a white man’s were not. Either Wyatt had a personal issue with Noel particularly speaking up, or it was starting to seem as if the government had a predetermined outcome in mind (despite the fact the committee was still taking submissions) and that outcome didn’t include the ideas we were proposing.

  We sent every committee member a copy of Noel’s essay, and Noel instructed me to write a submission explaining the proposed reforms. In the end we made three submissions to Wyatt’s committee, including a report on the New Zealand research trip.

  The day after the essay la
unch, our broader ‘con con’ group co-signed the letter to Tony Abbott to inform him of the newly forged consensus and ask for a meeting.

  Noel also spoke to Abbott on the phone and explained the proposal. Strangely, Abbott expressed a preference for Indigenous reserved seats instead, like they have in New Zealand. He thought that would be a simpler solution than a constitutional advisory body. A day later, as Noel would subsequently describe, The Australian reporter Dennis Shanahan ‘floated the anonymous balloon and exploded it himself, in the same article’.5 Abbott’s reserved-seats brainwave, which I assume was leaked deliberately by the prime minister’s office, died the same day.

  It at least showed that Abbott was not closed-minded about substantive constitutional reform, however. Though he’d indicated preferences for minimalism previously, it seemed he was now grappling with how substantive reform might be achievable. Perhaps he was feeling ambitious. If he was, the negative reaction to his reserved-seats idea must have dampened his spirits.

  Abbott was up in Arnhem Land in September 2014, doing one of his remote community stints. Yolngu elders, probably influenced by our policy work and their respect for Noel’s ideas, used the opportunity to advocate to the prime minister regarding constitutional recognition. As The Australian top-end journalist Amos Aikman reported, the group of Yolngu leaders pragmatically indicated to Abbott that they did not wish the constitutional recognition debate to become ‘mired in arguments about racial discrimination’, an acknowledgement that seemed to heed the warnings of constitutional conservatives against the Expert Panel’s proposed clause. In any case, they seemed more concerned with practical action to address their disadvantage. As Aikman reported, the Yolngu elders told Abbott they needed a stronger voice for their people and their land—for their land was ‘unable to speak for itself’. The Yolngu wished to empower their ‘Dilak, those adults who have traditional authority, but who struggle to be heard in the wider world’ and argued for constitutional change to enable the ‘Dilak to speak for their people, and ensure their opinions are heard’. The Yolngu were sending a simple message: listen to our voices.6