Imagine, for a moment, that Julian’s alternative founding story had played out. Imagine if Indigenous heroes like Pemulwuy, Windradyne or Jandamarra had sat down with Griffith and Barton at the Windsor Hotel, or aboard the Lucinda on the Hawkesbury River, to draft the Constitution. And imagine if these Indigenous representatives had been viewed by their colonial counterparts not as subhuman or inferior or as members of a ‘dying race’, but as equal, empowered and worthy of fair and negotiated inclusion in this nation’s founding agreement.
It is likely they would have negotiated themselves a voice.
Consider our Constitution: it’s a unity compact. It is the deal the colonies struck to form one nation. The rulebook set out how the disparate colonies would coexist in peace and shared prosperity. It was a compromise between separateness and togetherness, unity and independence. And Australia’s Constitution already recognises pre-existing political communities—the former colonies, now the states. It ensures their representation and guarantees them a say, a voice, in the government of the Commonwealth.
Our Constitution is unique, because it protects our human rights not through a bill of rights or an equality guarantee, like so many other countries, but by giving the constituent parts of the federation a fair say. That is the genius of our check-and-balance federal system. Even the minority states like Tasmania are guaranteed an equal voice in the Senate.
As noted, there are more Indigenous Australians than Tasmanians.
The First Nations too are a distinct and pre-existing political community in our country. They were not at the negotiating table with the founding fathers when the original deal was done, when power was distributed and this Commonwealth was created. But they should have been.
The Uluru Statement, and the Referendum Council’s report, for the first time in Australia’s history, offered a sensible, achievable and constitutionally conservative way of rectifying this original omission. The reform proposed was, as eminent constitutional professor Greg Craven described, ‘modest yet profound’. It was a radical centre solution.
After the Uluru Statement, the position of the Labor Party began to correct itself, dragged up by Indigenous ambitions. Bill Shorten backed the statement’s proposals, and Labor began to reassert its pressure. By this stage, however, it evidently wasn’t enough.
As soon as the Uluru Statement was released, incorrect interpretations of its meaning arose. The ABC erroneously reported that it was a rejection of constitutional recognition in favour of a treaty. It wasn’t: it was a rejection of minimalism and a resounding endorsement of substantive recognition through a First Nations voice in the Constitution, as well as a Makarrata process.
Then Deputy Prime Minister Barnaby Joyce called the proposal a third chamber of Parliament. This too was incorrect: the proposal was for a First Nations voice to Parliament, not in Parliament—an advisory body with no veto powers. I suspected Turnbull had sent Joyce out with the ‘third chamber’ line. Joyce also said the proposal was ‘overreach’ and would not be supported by Australians.
The Uluru Statement initially did not win clear enough solidarity from the Indigenous MPs. Though Shorten strongly endorsed it in his notable speech at Garma in Arnhem Land, his party members did not immediately fall into line.
Patrick Dodson on TV called the proposal ‘a bolt in the dark’, suggesting that the idea of a constitutional body had come too late and was a new or unknown concept. He also suggested that previous reports, like those of the Expert Panel and the joint select committee, which had proposed a racial non-discrimination clause, should not be dismissed—minimising the significance of the Uluru Statement. Linda Burney expressed disappointment at the ‘limited’ nature of the Referendum Council’s recommendations, suggesting they should have recommended fixing up the race clauses. ‘I think we are on a path that it is further away than what I anticipated,’ she said pessimistically.10 And in the Coalition, Ken Wyatt seemed to suggest the Indigenous body should just be legislated, not constitutionalised, taking a similar negative tone to Barnaby Joyce.
It was Marcia Langton who, with characteristic strength and accuracy, said what everybody was thinking. ‘The noise coming from our federal parliamentary representatives seems to dismiss the 250 delegates at the Uluru convention and their thoughtful approach to the technical difficulties, the threads and strings of constitutional change propositions,’ she stated. ‘Their resolution of these issues is intelligent and in the national interest, as well as serving the Indigenous sector and polity. Are the Indigenous parliamentary representatives serving party interests rather than the national interest?’11
Although the Indigenous MPs would adopt supportive positions down the track, at this stage it was clear that the government had successfully deployed a divide-and-conquer strategy, pitting the Indigenous MPs against the Indigenous consensus forged at Uluru. This strategy had been playing out since the ‘snowflake’s chance in hell’ meeting of November 2016, at which the Indigenous MPs indicated agreement with Turnbull’s minimalist position. The early negativity towards the Uluru Statement from the black MPs on both sides sent a strong signal: lack of internal pushback on Turnbull. Lack of political tension. It initially suggested they were letting Turnbull get away with dismissing the proposal for an Indigenous voice in the Constitution.
It wasn’t all negative voices, of course. There were strong supporters. In June 2017, Julian Leeser explained to Parliament that Indigenous people were providing them ‘an important direction. They are telling us that they want to be consulted and have a voice in the way in which policy is developed, and consultation is good.’12 Former Aboriginal affairs minister Fred Chaney, who launched our edited collection at Garma, also spoke in support of the Uluru Statement, and Jeff Kennett wrote an enthusiastic piece advocating its merits. There were many others who slowly galvanised.
But faced with government opposition and the initial ambivalence of the Indigenous MPs, supporters were largely powerless. From the moment Dodson, Burney and Wyatt expressed disappointment at the Uluru result, I feared the proposal may be doomed. People change their minds, however. Often, leaders who change their minds can become the most passionate advocates for the cause.
13
The Rejection
IN 2011, Malcolm Turnbull wrote in The Monthly a review of James Boyce’s book on John Batman’s historic attempted treaty in the colonial founding of Melbourne in the 1800s. As a resident of Melbourne, Turnbull’s words moved me. Reflecting on our historical relationship with Indigenous peoples, he wrote:
When governments say doing the right thing is ‘too hard’, what they are really saying is that it is more lucrative, or expedient, to do the wrong thing. Our forebears preached protection of native people and the blessings of Christ while they largely destroyed a people and a way of life.
So if you ever walk quietly along Robert Hoddle’s wide boulevards or along the banks of the Yarra, tamed to look like an English river, listen carefully. You may hear the weeping of the Kulin—betrayed, dispossessed, but not yet quite forgotten.1
In October 2017, Prime Minister Malcolm Turnbull rejected the Uluru Statement from the Heart. He said the proposal for an Indigenous body in the Constitution was neither ‘desirable nor capable of winning acceptance at referendum’. Doing the right thing was too hard. It was more expedient to do the wrong thing.
The government’s rejection was based on six lies that need to be corrected.
The first was that an Indigenous voice in the Constitution would undermine Australia’s equal citizenship and would be contrary to the principle of equality. This assertion is false.
There is no equal citizenship under Australia’s Constitution. We are not the United States of America. We have no constitutional equality guarantee: the political right opposed such a reform when Noel and I pushed a racial non-discrimination clause. And I have already explained how Tasmanians are disproportionately represented in the Senate—a fact we all accept as part of our unequal constitutional system,
which gives a fair voice to our pre-existing political communities, even the very small ones. Not to mention the fact that our Constitution contains racially discriminatory clauses, or that many of the privileges of Australians’ citizenship have historically been shared supremely unequally, especially with respect to the dark-skinned among us. Despite these basic underlying errors in the prime minister’s assertion that some kind of equal constitutional citizenship operates in Australia (it does not), an Indigenous voice in Indigenous affairs is in no way contrary to principles of equality.
It was Turnbull who vowed to ‘to do things with rather than to’ Indigenous people: was that concept, the just idea of consultation, contrary to principles of equality? The proposition that Indigenous people should have a better say in laws made specifically about them—native title, indigenous heritage, closing the gap and so on—is no more contrary to principles of equality than Turnbull’s own hand-picked Indigenous advisory body, which already exists and operates, albeit largely ineffectively. Because let’s face it—what good is a government-appointed body? Government will obviously choose individuals who are likely to tell it what it wants to hear. That is why any Indigenous body should be chosen by the First Nations themselves, to be a strong, independent voice to Parliament—as Indigenous people insist.
How can Turnbull claim that an Indigenous body to advise on Indigenous affairs is contrary to the mythical concept of equal Australian citizenship when his own collaborative slogan and his appointment of Indigenous advisers to have input into Indigenous affairs demonstrate not only that an Indigenous voice is sensible, but that it is crucial to making good Indigenous affairs policy? Remember: in 2015 Turnbull told Noel and me the proposed Indigenous advisory body was sensible. That in 2017 he asserted otherwise, on the basis of false equality rhetoric, in my view shows a man who lacks principles.
An Indigenous voice in Indigenous affairs is not contrary to equality. That was the first lie.
The second lie was that the proposal for an Indigenous body was too short on detail. In fact, the proposal was deliberately designed to leave Parliament to design and enact the detail of the body through legislation—this is how it respects parliamentary supremacy, and why it’s a constitutionally conservative proposal. If Turnbull wants to complain there is a lack of detail, he needs to blame himself and his Parliament for not being prepared to do the work—for it would be his Parliament’s job to work with Indigenous people to create that detail. (Not to mention the fact that Cape York Institute delivered to the PM a report of 78 or so pages, which he read and notated, and discussed with Noel Pearson.) The proposal is not short on detail. It sensibly leaves detail design to Parliament and appropriately defers construction of the detail to legislation, like many existing constitutional clauses. There is a plethora of policy detail upon which Parliament could draw—if it wanted to and if it could be bothered.
‘Lack of detail’ was Turnbull’s second lie.
The third was that this proposal would create a third chamber of Parliament. This is incorrect, and in direct contradiction to what Turnbull said in his meeting with Noel, Richard Windeyer and me in June 2015, back when he was communications minister. His claim that an Indigenous advisory body would ‘come to be seen as a third chamber of Parliament’ is a dog whistle to the far right.
The proposal is no third chamber. As explained in the Referendum Council report, it is a voice to Parliament, not in Parliament. An external advisory body, with no voting powers, no veto over legislation and no power to make laws—whose make-up, functions and operation are ultimately for Parliament to decide. The proposal involves no change to the make-up of the Houses of Parliament.
That was the third lie.
The fourth lie was that the proposal for an Indigenous voice in the Constitution came too late in the day. Indigenous people have been asking for a stronger political voice in their affairs since at least the 1920s, if not long before that—since William Cooper’s letter to King George in 1937 asking for reserved seats in Parliament, since the Yolngu bark petitions in 1963 calling for fairer consultation in decisions made about them, and since the Barunga Statement in 1988, which called for an Indigenous body to oversee Indigenous affairs, and a treaty. A First Nations voice is about self-determination and empowerment. It is a very old idea, not a new one.
In terms of the current proposed constitutional voice, Cape York Institute first proposed it in 2014 and it was put forward in numerous submissions after that. The contemporary iteration of the idea was at least three years old, and the excuse that the proposal comes too late is disingenuous. Australia has been waiting over 200 years for proper Indigenous recognition. We should take time to get this right and do it properly.
The proposal was not too late. That was the fourth lie.
The fifth lie was that the Indigenous MPs are a voice for First Nations people and so no independent voice is needed. Nothing disproved this claim better than the fact that, when the Uluru consensus was first formed, the Indigenous MPs did not seem supportive. Indigenous MPs, like Greek, Indian or white MPs, must represent their electorates—the people who voted for them—but primarily their political parties. They necessarily carry allegiances that often override their Indigenous allegiances, and this is as it should be. They are politicians after all, elected by all Australians and representing their parties.
In December 2017, Teela Reid asked a question on Q&A challenging the prime minister’s claim that the Indigenous MPs provided the necessary First Nations voice. Turnbull suggested she was calling the Indigenous MPs ‘tokens’—his word, not hers. With impressive strength in the face of his attempted manipulation, Reid rejected his implication. ‘Absolutely not what I’m saying, at all,’ she said. Turnbull’s attempt to drive a wedge between the Indigenous MPs and Indigenous citizens was obvious, undignified and un-prime-ministerial. And as Reid correctly pointed out, to observe the reality of an Indigenous politician’s political role was not to show disrespect. Everybody should be happy there are Indigenous MPs in Parliament—indeed, there should be more. But they do not represent the First Nations, because they are not chosen by them. That is why an independent Indigenous voice to Parliament is needed, to better inform all politicians—Indigenous and non-Indigenous—in their decision-making on Indigenous affairs.
The claim that the Indigenous MPs are a First Nations voice was part of Turnbull’s divide-and-conquer strategy, and it was incorrect.
The sixth lie was worst of all. The prime minister claimed that Australians would not support a First Nations voice in the Constitution and predicted that such a proposal would fail at referendum. Government did no polling, by the way. Indigenous Affairs Minister Nigel Scullion said he didn’t need to—he was following his gut.
This verballing of the Australian people underestimates their intelligence and goodwill. Independent research conducted by Omnipoll in August 2017 showed that 61 per cent of Australians would in a referendum vote yes to an Indigenous constitutional voice. Does that number sound familiar? It is exactly the same percentage of Australians who voted yes to same-sex marriage in the postal survey, which has now become law. Then, in February 2018, Newspoll research indicated 57 per cent support for an Indigenous constitutional advisory body—and that is in the face of sustained government opposition and fearmongering.2 By this time the Indigenous Labor MPs had well and truly abandoned their previous equivocation, and were advocating passionately in favour of the Uluru Statement’s call for a voice to Parliament, rallying behind Shorten.3
The polling confirmed what Noel and I already knew: it is not the people blocking progress on Indigenous recognition, it’s the Coalition politicians.
Noel was heartbroken. So was I.
‘Malcolm Turnbull has broken the First Nations’ hearts,’ Noel said on ABC radio. I could hear the emotion in his voice as he spoke. This was his life’s work and his people’s hopes—destroyed. I sat at home in Melbourne, listening on my phone. Turnbull had accused John Howard of breaking the nation
’s heart after the 1999 referendum and now Turnbull had ‘done the same thing in relation to recognition of Indigenous Australians’.4 Noel sounded out of breath in anger. I was out of breath just listening.
Bill Shorten wrote to the prime minister to tell him ‘a unilateral decision of this kind’ was contrary to his ‘repeated promise to do things with Indigenous Australians, and not to them’.5 Patrick Dodson told the media it was ‘a real kick in the guts for the Referendum Council and certainly a slap in the face of those proponents’.6
The outpouring from Indigenous leaders was visceral in its grief.
Joe Morrison, an Indigenous leader from the Northern Territory, said the prime minister had ‘failed the nation’.7 Rod Little, of the National Congress of Australia’s First Peoples, lamented that ‘Aboriginal and Torres Strait Islander people have been let down once again’.8
The furious Pat Anderson nailed Turnbull’s know-it-all pomposity. ‘The prime minister has turned himself into the latest mission manager,’ she seethed. ‘He knows what’s best for us and also he’s omniscient because he knows what the Australian public are going to—how they’re going to vote at a referendum.’9 All of her and Megan Davis’s tireless work, cruelly dismissed. Jill Gallagher fiercely refuted Turnbull’s unfair verballing of the Australian people. ‘I believe fully in my heart of hearts that the Australian population would have supported a referendum’ on the voice proposal, she said. ‘And I don’t think anyone should pre-empt what the Australian population would do.’10 Turnbull was doing the old ‘blame the constituency trick’, this time about the Australian people, and it wasn’t fair.
Constitutional expert Dylan Lino tweeted to declare Turnbull’s rejection ‘a despicable act of mean-spirited bastardry’—a phrase that made headlines. The law fraternity quickly stepped up, reiterating their support and affirming that the proposal was no third chamber of Parliament. Supportive statements from the NSW Bar Association and the Law Council of Australia, ironically, had been released a few days before the government’s rejection. They offered to work with government to salvage the proposed reform. But it came too late.11
Radical Heart Page 24
