Listen to us. Recognise our traditional Dilak. It was a message Abbott needed to hear.
Our proposed meeting with Abbott didn’t happen until three months later, in December 2014. Members of our ‘con con’ alliance met with him and Peta Credlin, together with prime ministerial adviser Bennie Ng, at the prime minister’s Parliament House office, to make the case for an Indigenous voice in the Constitution. Abbott listened to the arguments from the constitutional experts and the Indigenous leaders, then proposed his own revised, weaker drafting for the Indigenous advisory body, on the fly—just like he had in our 2012 meeting in response to our proposed equality guarantee. I thought it odd that he could think his off-the-cuff amendments superior to the ones that experienced constitutional experts had spent months negotiating word by word. Just as he had impulsively floated reserved seats, so too would he impulsively draft a superior Indigenous body amendment, it seemed. It was an insight into how Abbott’s numerous foot-in-mouth moments as prime minister, which were costing him politically, had come about. It seemed he didn’t take enough time to think things through.
This didn’t instil much confidence. Constitutional reform required a leader who could pursue a smart, considered political strategy, not someone who made rash, impulsive moves and comments.
Nonetheless, Abbott wasn’t totally opposed to the idea of a constitutionally enshrined advisory body. He was, however, worried about the political difficulty of achieving it. As he complained to Noel earlier in September, having copped the negative response to his hasty reserved-seats idea, he was worried that today’s conservatives lacked compassion—the unspoken implication being that he had loads of it and it was others who were the problem. A subtle version of the old ‘blame the constituency’ trick. It’s not me: it just won’t wash with these other bastard right-wingers.
Yet here we were, demonstrating that some conservatives indeed had compassion and could support and champion an Indigenous body in the Constitution. Couldn’t Abbott, as the self-proclaimed Prime Minister for Indigenous Affairs, be one of them, and help champion the reform in his party room? Instead, he asked our ‘con con’ friends to help build consensus for the proposal so he could then lead. They agreed.
Looking back, the sad irony of Abbott’s ‘conservatives lack compassion’ observation hits home. In the time he had left as prime minister, he never showed any real leadership on this issue. He never did the hard work and the hard thinking, and never did any real consensus-building.
I’m writing this in 2018. Malcolm Turnbull is now prime minister, after knifing Abbott for the job in 2015. Perhaps not for long. An embittered Abbott, having retired to the backbench, has been the Liberal Party’s resident spoiler ever since, despite promising not to be. This remains an unstable government, riven from within.
No wonder Abbott was nervous about the politics and ultimately unable to show leadership on Indigenous recognition. He was desperately clinging to his job and trying to maintain control of his party, just like Turnbull would be when he obtained the prime ministership. That’s not an excuse for what they did. Ultimately, for these men, it became all about holding on to power rather than wielding it for the national good.
Just recently, Abbott complained about the ‘toxic egos’ on ‘both sides of Parliament’ being detrimental to politics. ‘Too many people have put themselves first and not their country,’ he complained.7
Abbott could have been talking about himself, not just his usurper. And the Yolngu still wait for their voices to be heard.
8
Low Expectations
IMAGINE THE POLITICAL spectrum is a clock face, divided in half: left and right. Progressive middle around twelve o’clock, spanning across both Labor and the Liberals. The Nats and One Nation at four and five o’clock, further to the right. The Greens at seven o’clock, around to the left. Both sides get more radical as they get closer to six o’clock.
With our ‘con con’ alliance, we’d placed a small stake in the ground at around 4.30 on the political spectrum, with our group on the conservative right. The theory was that everyone to the left of that stake should be easier to get on board, because progressives, by definition, are more ambitious about reform than conservatives. The further left you go, the easier it should get.
That was the theory. In practice, it didn’t always play out.
Personalities, egos and partisan politics had a huge role in influencing what the various players would or would not support. While it was crucial to have conservative allies, for constitutional reform bipartisanship (and indeed multi-partisanship) was just as important.
Noel had the unusual talent of appealing to both left and right, but he could infuriate left and right too. In mid-2014, he enamoured the political right with his fiftieth birthday of The Australian gala speech, but probably annoyed the left, who might have interpreted it as simply sucking up to Rupert Murdoch. In November that year, he ignited progressive passions with his groundbreaking eulogy speech at the funeral of former Labor prime minister Gough Whitlam, rightly praising his reform legacy, but in doing so he may have alienated the right.
Each move had its ramifications. Advocacy and persuasion were balancing acts, just like the constitutional drafting. We knew the right would need the most persuasive work. But we also knew our work with the right might turn off the left.
We’d built our ‘con con’ alliance. But plenty of people weren’t happy about it.
The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was chaired by Ken Wyatt, with Indigenous Labor senator Nova Peris as the deputy chair. It was a cross-party committee charged with taking constitutional recognition forward, building on the work of the Expert Panel.
The committee was exploring variations on the Expert Panel’s proposals. But these variations were essentially more limited racial non-discrimination guarantees and retained uncertain symbolic language in the Constitution—reforms that still empowered the High Court. They did not address the crux of conservative objections.
Noel and I could see where the committee was heading. It was failing to step to the right and up; instead, it was trying to move right by watering down the Expert Panel’s proposals, but sliding down to minimalism in the process.
Instead of addressing the crucial question of justiciability and High Court uncertainty, and adopting a non-justiciable yet substantive and empowering reform—being the Indigenous constitutional body—the committee’s attempts at trimming the panel’s proposals were pulling the whole thing downward towards nothingness. Once a racial non-discrimination clause (and variations of) was derailed by the political right and therefore abandoned, as we predicted it would be, the only thing left would be a symbolic insertion and some tidying-up of the race clauses—minimalism—unless the committee adopted an alternative substantive reform. To avoid a minimalist result by default, we had to persuade it of the merits of the Indigenous body proposal we had nutted out with constitutional conservatives.
It was proving difficult.
Wyatt and the Labor members on the committee were initially sceptical of the Cape York Institute proposal. The natural left–right tribalism was readily apparent.
On 6 November, Fiona Jose and I addressed the committee at a public hearing in Cairns. Labor Shadow Minister for Indigenous Affairs Shayne Neumann was dismissive of the criticisms of constitutional conservatives in relation to a racial non-discrimination clause—he said they didn’t understand the constitutional role of the High Court. Neumann was also critical of the body proposal and the idea of a Declaration. He argued that the High Court would use any extra-constitutional Declaration to make implications about the constitutional body, leading to legal uncertainty.1 Surprisingly, Neumann, though on the left, was conjuring a fear about unintended judicial intervention that not even the most paranoid constitutional conservatives, such as Julian Leeser, had entertained. Neumann’s argument was far-fetched. I defended our position, but things were not beginnin
g well.
On 19 December, Noel, Marcia Langton and I attended a private hearing with the committee at Redfern in Sydney.2
Langton advocated strongly for the Indigenous body. She explained that the proposed racial non-discrimination clause had unearthed a political ‘minefield’ of opposition, and contended that the correct alternative solution was the proposed constitutional body. A voice for Indigenous people would ‘complete the Commonwealth’, she said, evoking Tony Abbott’s rhetoric. ‘It establishes First Peoples, the British traditions and the emergence of a democratic multicultural society with a very strong democratic polity in which all ethnicities, including the first peoples, are treated with respect and honour … I love the concept.’
On political viability, Langton was optimistic. ‘I think we can achieve it and I think it is very attractive to all Australians,’ she argued. ‘It resolves the problem of parliamentary sovereignty because the Indigenous body, whatever it turns out to be, would advise Parliament. It would provide a parliamentary consultation process that enables the Parliament to be apprised of Indigenous views on legislation that affects their interests …’
Noel contended the body was urgently needed to improve Indigenous affairs policies and ultimately close the gap. ‘[T]he good intentions of the wider community will never meet our determination to make those things work until we have a proper voice in the system,’ he said, urging the committee to envisage how such an Indigenous voice might add rigour, accountability and empowerment to the failing Indigenous affairs system.
He also noted the proposal seemed to carry favour with the Cape York people we’d so far engaged with, but needed wider national testing. He proposed a series of Indigenous regional meetings or conventions so Indigenous people could grapple with the ideas and issues. Langton agreed.
At that second hearing, it was Labor committee member Stephen Jones who pushed back hardest. ‘I am an advocate of the Expert Panel’s propositions,’ he said. ‘I see whatever we do thereafter as a necessary political compromise and not a virtue in and of itself.’
Jones suggested that the proposed constitutional body would be too weak—no different to the current Human Rights Commission, which was toothless and mostly ignored. Noel noted that the Human Rights Commission is not a representative voice for Indigenous Australians. (Nor is it, as I later pointed out, a constitutionally recognised institution.) Jones acknowledged this fact, but maintained scepticism. ‘I know the way that legislation is formed,’ he said. ‘I sit in Parliament; I see those bills come before it. If the answer is to have one of your mob stand up and read a report in Parliament before we vote on a bill, it would be pretty powerful at first, but over the years it would be diluted, I can tell you.’
It was the inverse of the ‘may become a one-clause bill of rights’ – style arguments. Instead of the worry that the reform might evolve into something scary—the right-winger’s fear of unintended radical change—this was the left-winger’s worry that it might evolve into something weak and insipid. Yet we were pushing a noble compromise, a sweet spot between the two extremes.
Jones wanted us to convince him that the advisory body would carry authority before he would consider it an acceptable alternative to judicial review. It seemed the proposal had to be all things to all people: we had to prove to conservatives it would be modest and risk-free, and we had to prove to progressives it would be authoritative and paradigm-shifting.
In reality, the proposal as intended—if designed, legislated and implemented well—could be all these things: that’s why it was a radical centre idea, modest yet profound. But how do you inspire leaders to imagine success when on a particular matter they seem pessimistically predisposed to imagine failure? We were talking about the future of the nation, after all. That future couldn’t be proved. It could only be created—with political will, leadership vision and collaborative action—by working together constructively to achieve a shared goal.
The hearing was a wake-up call—I’d always assumed progressives to be more generally optimistic than conservatives. But our engagement with the committee exposed a particular progressive attitude that seemed to bubble up in constitutional recognition, and perhaps in Indigenous affairs in general: progressive pessimism, derived out of well-meaning benevolence. What Noel described as ‘the soft bigotry of low expectations’ that sometimes infects leftist thinking. The assumption that Indigenous people will not succeed, leading to predictions of failure. The trouble is that such low expectations, when harboured by powerful politicians, can become self-fulfilling prophecies.
Jones pessimistically predicted the proposed Indigenous body would be ‘bureaucratic’ and ‘ineffectual’, but he didn’t seem to be worried that a racial non-discrimination clause might also be costly, cumbersome and ineffectual—which was a genuine risk. It’s not as if litigation is ever quick, certain or easy.
The fact is that both proposals had their pros and cons. I tried to explain this to the committee. I don’t know if I did a good job.
Neither an Indigenous advisory body nor judicial review under a racial non-discrimination clause was a failsafe solution for Indigenous people. Both had strengths; both had risks. The High Court doesn’t always hold in an Indigenous litigant’s favour, just as an Indigenous body’s advice won’t always be heeded by Parliament. But the proposed body, though carrying no veto, would be a proactive approach—an Indigenous voice and input before a law is enacted, right at the start when the bill is being debated. A racial non-discrimination clause is a retrospective, reactive approach—you go off to court after the law has already been passed and try to get it struck down, with no guarantee of winning. Some Indigenous advocates describe a racial non-discrimination clause as more like a shield—a passive protection—whereas an Indigenous body in the Constitution is more like a sword—a proactive voice. I pointed out that the proposed voice would carry the moral and political authority that arises from being an institution of the Australian Constitution—created by the powerful collective endorsement of the Australian people through a referendum.
Weak, strong; ambitious, modest—it was all about perspective. Ultimately, choosing what reform to advocate for was a call Indigenous people had to make, keeping in mind political viability, risks and potential gains.
While the concerns regarding the body proposal were valid and answerable, an underlying paternalism in the conversation began to grate on Noel and Marcia. I could see them trying not to lose patience. They’d endured right-wing paternalism, which advised Indigenous people not to be too ambitious lest the referendum fail. Now here was the progressive variety: advising them not to aim low, lest their preferred reform achieved too little for their people. Jones was trying to look out for Indigenous best interests, but these Indigenous leaders could do that for themselves. And they were not aiming low: minimalism was the very outcome they were trying to avoid.
The committee didn’t seem to get it.
Noel worked hard to refute the argument that the Indigenous body would be too weak. It would need ‘proper institutional recognition’, he said. It should not be ‘slinking around the corridors’ like some lowly lobby group. ‘It should be an institution in the Parliamentary Triangle that has an honoured place in the nation’s democracy … supported by good legislation. With the proper status and respect being accorded to this institution, it could be a powerful voice …’ Affirming there would be no veto, he argued that the body could nonetheless carry ‘the moral power of a people’s voice, which is a lot more than we have now’.
He was trying to paint the vision, but so far the Labor guys didn’t seem inspired, though Nova Peris seemed cautiously curious. The women on the committee—Peris (Labor), Rachel Siewert (Greens, from Western Australia) and Bridget McKenzie (Nationals, from Victoria)—at this hearing seemed significantly more open-minded than the men.
I suspected the Labor members had received advice from some left-leaning human rights lawyers who were likely ideologically predisposed against the b
ody proposal. Some, I gathered, seemed to feel betrayed by our shift away from racial non-discrimination. Human rights expert Professor George Williams, who had helped us draft the racial non-discrimination clause, had seemed initially unhappy about our change in position and argued publicly against the proposed constitutional body. He too initially felt it would be weak. Williams may have also felt put out that we’d worked with conservative constitutional lawyers—his natural adversaries. A long-time advocate of a bill of rights for Australia (which constitutional conservatives successfully opposed), Williams had an understandable affinity for rights-clause solutions. He was also affiliated with Labor.
Langton evidently carried a similar concern. At one point she told the committee she was worried they were ‘being persuaded by a particular kind of constitutional advice’ that was mixing up recognition with bill of rights issues. Her advice was pragmatic: ‘either we want to win the recognition issue or we want to lose it. If you mix it up with all of these general human rights problems, then we will lose it. We will lose the referendum.’
‘Lose!’ Bridget McKenzie echoed, with a raised ‘Hallelujah!’ hand—like a sassy back-up singer to Marcia’s gospel. She was nodding enthusiastically at much of our advocacy.
Jones wasn’t convinced. He told us he ‘needed to get excited’ about the proposal. The irony was excruciating. The right had warned us that the Expert Panel’s racial non-discrimination clause (which we had passionately pushed) was too strong, driven by caution and a desire for certainty. And now that Noel and Marcia, two former Expert Panel members, had adjusted to a noble compromise position that took on board conservative concerns, progressives were complaining their alternative proposal wasn’t exciting enough and so were withholding their support.
Radical Heart Page 15
