Despite Turnbull’s criticism of the proposed Indigenous constitutional body, Australians across the political spectrum immediately began to prove the prime minister wrong by expressing their solidarity with Indigenous people and their call for a voice. On Sky News, Labor-aligned Kristina Keneally marvelled at the oddity of being in passionate concurrence with right-wing commentator Chris Kenny, who slammed the government’s rejection. The ‘Indigenous voice option was a neat model created by constitutional conservatives in concert with Indigenous activists … It’s hardly a radical idea,’ Kenny said.12
Former Labor prime minister Kevin Rudd noted on Q&A his unexpected ‘unity ticket’ with Alan Jones in support of the Indigenous advisory proposal. Though Rudd and Jones were on opposite ends of the political spectrum and usually disagreed on most things, they found themselves in passionate agreement on the merits of an Indigenous voice to Parliament and the foolishness of Turnbull’s rejection. ‘The body would be outside the Parliament, and on Indigenous matters the Parliament would be able to consult those people. How hard is that?’ Jones told the Q&A audience, explaining the proposal perfectly. My heart swelled with pride to hear him. Our constant explanation and refuting of Turnbull’s errors were evidently filtering through. Rudd agreed and called the Uluru proposals ‘unremarkable’, expressing disappointment in Turnbull’s lack of sensitivity and leadership. The proposal was unifying left and right as well as Indigenous and non-Indigenous Australians, despite government’s rejection.
Indeed, one of the positive side effects of Turnbull’s rejection was that it helped propel the Indigenous Labor members to a more strongly supportive position. And by February 2018, Labor Shadow Treasurer Chris Bowen on Q&A also passionately backed the Uluru Statement’s call for an Indigenous constitutional voice and even saw fit to commend constitutional conservatives (particularly Greg Craven) for their support of the proposed reform. Bowen also unexpectedly praised our book, The Forgotten People.13 Labor had come a long way from Shayne Neumann’s antagonism towards the ‘con cons’ and the body proposal in 2015—now there was a sense of Labor solidarity with the ‘con cons’ in support of the Uluru Statement.
Turnbull’s rejection made it easier for the left to step up and advocate—because now it was about opposing the Liberal Party, not conceding to constitutional conservatives. It was the natural partisan dynamic. Still, our radical centre logic was now coming to fruition: this truly was a proposal on which both progressives and conservatives, and Indigenous and non-Indigenous Australians, could find common ground.
The Indigenous recognition movement was, as Noel described, ‘gazumped’ by the same-sex marriage plebiscite, which overtook the national agenda.14
For all its inefficiency, the same-sex marriage postal survey delivered a just result. But it also lay bare the disconnect between politicians and the Australian people. As noted, in Tony Abbott’s electorate of Warringah, 75 per cent supported same-sex marriage, and Abbott’s claim that his oppositional view represented a ‘silent majority’ was disproven. There was also less support for same-sex marriage in Labor electorates than Liberal electorates. This too was telling, since Labor politicians were more passionately in favour, whereas more Liberal politicians were against.
Politicians don’t always represent their constituents. When they claim to represent a ‘silent majority’ or ‘ordinary Australians’, their claims must be interrogated. As the same-sex marriage result showed, Australians can be ahead of politicians on social justice. Turnbull’s rejection of the Uluru Statement, and his unsupported claim that the Australian people would reject the proposal, must be equally interrogated.
The double standard demonstrated by the prime minister with regard to the two issues is clear.
When the religious freedom detractors asked for more legislative detail on same-sex marriage, Turnbull’s response was happy-go-lucky. We’ll see Parliament ‘at its best’ in developing such detail, he assured Australians. On same-sex marriage, he indicated it was acceptable for Parliament to provide necessary detail after the vote—such detail has now been developed and legislated. But on the Indigenous voice proposal, he used ‘lack of detail’ as an excuse not to have a vote. No assurances that his parliament would be ‘at its best’ to flesh out such detail in due course. On same-sex marriage, Turnbull promised to do the necessary parliamentary work. On Indigenous recognition, he makes the ‘No’ case and shirks responsibility.
On same-sex marriage, Australians voted around 60 per cent in favour—with the prime minister advocating for it. Yet on Indigenous recognition, polls have found that around 60 per cent of Australians would vote yes in a referendum for an Indigenous voice15—with the prime minister pushing against the proposal: in the face of his government’s sustained negative spin.
Turnbull says the Australian people would not support an Indigenous voice in the Constitution, but the evidence says the opposite. His rejection not only dismissed the Indigenous voice, it denied the voice of the Australian people.
The Coalition rejected the Uluru Statement while Labor and the Greens ultimately backed the reforms. Shorten’s advocacy in defence of the statement was powerful and impressive.
The progressive left are not without blame, however. Progressives were for too long missing in action.
Earlier in 2017, I was asked to do a short talk at the Wheeler Centre’s ‘Festival of Questions’ at the Melbourne Town Hall. I decided to address their question: Is a treaty more important than constitutional recognition of Indigenous peoples? It was a leading question that demonstrated the regular leftist bias. I argued the radical centre position: trying to rank the importance of a treaty against constitutional recognition is the wrong question. It’s a false dichotomy. Both are equally important.
When I walked into the green room before my speech, two influential progressive lawyers who were also speaking (on different topics) promptly came up and advised me they thought a treaty was more important than constitutional recognition. Both men let me know they didn’t particularly like Noel’s proposed advisory body: they felt it was too weak, and a treaty would be much better. I was baffled—this was after the Uluru Statement. Indeed, it was in October 2017, not long before the prime minister’s rejection. I could understand good-willed Australians before Uluru taking different positions and cherry-picking the views of whichever Indigenous leader was their favourite. But now there was a national First Nations consensus position calling for a voice in the Constitution—it wasn’t just Noel Pearson.
The two lawyers seemed to imply that the Uluru Statement had got it wrong and that they knew better. Though one eventually signed prominent professor Fiona Stanley’s petition in support of the statement and began advocating for its reforms, and the other, after my talk, said he’d think more about the arguments, which he said I’d argued clearly, Turnbull’s rejection came soon after. The time for thinking was gone.
I raise the absence, or tardiness, of support from progressive advocates not to single them out, but because it saddens and frustrates me. I regret that influential progressives did not help sooner. I hope next time, if there is a next time, those people will offer more prompt and passionate backing of their Indigenous compatriots. Progressive lawyers should have made it their business to understand the Uluru Statement from the Heart and support it as an act of Indigenous self-determination.
Yet the ambivalent or confused position of progressives on Indigenous constitutional recognition has a long history, which was further complicated by the influence of Recognise—an organisation that was led by a Labor man.
For a long time, people viewed a treaty as automatically strong and cool, and constitutional recognition as weak and uncool. You were either in the treaty camp and you were a groovy lefty, or you were in the constitutional recognition camp and seen as selling out to the feel-good fluff Recognise was flogging. Or you at least ranked one as more important than the other. These two camps for too long divided good-willed Australians. And when Australians of goodwill a
re divided on the right way to proceed, it lets government off the hook more easily. The division was detrimental to both causes, and helped lead to October’s rejection. It meant there was a lack of political tension and made it easier for Turnbull to do what he did.
The reality is that a treaty and constitutional recognition are complementary goals. Both are about power. Both are about reforming an unfair power relationship—the relationship between the First Nations of this country and the colonising state, the Australian government.
The Constitution—whether we like it or not, whether we philosophically agree with its existence or not, whether we think it is an illegal document or not—is Australia’s highest legal and political rulebook. It is the document that distributes power across the Commonwealth, and shares power out between the constituent parts of our federation. But as noted it creates for Indigenous peoples a position of perpetual powerlessness. That is the problem constitutional recognition seeks to fix. It’s not a problem that, as the Uluru Statement correctly identified, can be fixed with mere symbolism. It can only be fixed with substantive constitutional reform, which is what Indigenous people asked for and what good-willed Australians should back.
What is the purpose of a treaty, then? A treaty has that same fundamental goal. Treaties too are about empowering the First Nations and creating a fairer relationship. The dichotomy dissolves once you think seriously about the objectives of these reforms, which are complementary.
The Uluru Statement undeniably exploded the false dichotomy once and for all. It said: we want both—we want meaningful, substantive constitutional recognition through a First Nations voice guaranteed in the Constitution, and we want a Makarrata Commission, or treaty-making process, to be set up in legislation. It shows decisively that these two goals are not mutually exclusive.
And the practical reality is that the one supports the other. The First Nations are going to need a representative structure in order to negotiate and sign off any treaty with government. Having representation of First Nations is a necessary first step. There needs to be a structure to engage with government and assent to the treaty. When I observed some early treaty discussions in Melbourne, the need for a representative structure for the First Nations of Victoria was immediately recognised by delegates. From what I understand, such a structure has been designed—because people see that you need representation before any negotiation with government can proceed.
Well, the white progressive lawyer typically says, just legislate the structure! Why do we need to tinker around with the Constitution, which is so hard to change? Government should just legislate the First Nations body. To that I say: look how easily ATSIC, implemented by Labor then abolished when Howard was in power, was struck down with the flick of a white politician’s pen. The Constitution is much harder to change than legislation. A constitutional guarantee provides permanence.
Indigenous Australians have now said what they want.
There is no longer any excuse for progressive supporters to be missing in action. A better question to ask now is: now that Australians of goodwill know what reforms Indigenous people want, how are we going stand in solidarity with the First Nations to ensure these reforms are achieved?
That the attorney-general took the reform to Cabinet arguably shows how close the Indigenous constitutional body got to being accepted. Brandis’s department had advised us that the proposal was legally sound and constitutionally modest, and thus their preferred option. It was backed by serious constitutional conservatives, and now it had unprecedented Indigenous consensus. All this was achieved despite concerted undermining of the model by government, pollsters and Recognise over the years.
Turnbull could have just said no. Instead he made the dishonest ‘No’ case. Why? My best explanation is that he got scared by the Indigenous consensus. Scared by the growing, widespread public support. A constitutionally enshrined First Nations voice, modest as it is, would empower Indigenous peoples and hold Parliament to greater account in Indigenous affairs. Government wants to keep all its power. It doesn’t want to share. The status quo works well for its purposes—so why change it? That’s why the government wants minimalism.
Recently I chatted to a Liberal Party backbencher who explained the underlying concern. They knew there was no veto, and they knew no ‘third chamber’ was proposed. Some Coalition members were simply scared to give Indigenous people a guaranteed say in their own affairs, because they were worried such a voice might have political influence, and that it might disagree with government policy. It was ironic: the party championing liberal values, freedom and a robust democracy, was afraid of Indigenous free speech. Afraid of Indigenous dissent. Paul Kelly conveyed a similar fear in a phone conversation with Noel, which Noel later described in The Monthly: ‘Kelly said something startling. He understood the voice proposal was not a third chamber, and Turnbull was wrong to describe it as such. The startling thing he said was that the voice, even though only having an advisory function, would operate virtually as a veto on parliament. A body without the legal power to direct parliament would hold some sort of non-legal veto over the parliament. Really? This late in our history and here is a great old white man conjuring a great old white fear about Indigenous voices. A stalwart defender of free speech, now saying he opposes the mere expression of an Indigenous opinion, for fear it might influence Indigenous policy.’16
Such fears were unwarranted. The only risk in giving Indigenous people a voice, and allowing better debate and discussion in Indigenous affairs, is that Indigenous policy and outcomes might be improved. This would be good for Indigenous people, and good for the nation.
Turnbull must also have calculated (wrongly, in my view) that the rejection was a vote winner. Yet he is paying a political cost for his heartlessness. This is another example of his inability to provide the kind of progressive leadership he promised Australians, another example of a politician selling out his principles in exchange for political ascendancy.
It is also a foolish decision on his part.
A minimalist model would be opposed by the majority of Indigenous people, who have now made clear they seek substantive reform over mere symbolism. And constitutional conservatives will galvanise against the insertion of flowery statements, to uphold the Constitution and prevent the transfer of power to the High Court. Indigenous advocates in favour of substantive reform over empty symbolism will find unexpected allies in constitutional conservatives. Together they will form a powerful coalition that would defeat a minimalist referendum.
There is an important analogy here with the failed republic referendum. During that campaign, the direct-electionists joined forces with the monarchists to successfully oppose constitutional reform for Australia to become a republic. The alliance demonstrated the way in which people who might ordinarily disagree can unite against a common enemy in a referendum fight. In the recognition debate, constitutional symbolism would become the common enemy of Indigenous advocates and constitutional conservatives. It would animate an alliance between Indigenous people seeking substantive reform over decorative words, and constitutional conservatives seeking to uphold the Constitution and protect it from uncertainty. But with the right model, these two groups can unite as passionate advocates for sensible yet substantive reform.
Such an alliance may yet play out as reality. A new Joint Select Committee has now been appointed to further Indigenous constitutional recognition. The Uluru Statement and the Referendum Council’s report are part of its terms of reference, indicating that Turnbull’s rejection is far from the last word. The Committee’s co-chairs have been named as Patrick Dodson, the father of reconciliation, and constitutional conservative, Julian Leeser, co-designer of the constitutional voice and an integral part of our ‘con con’ alliance. The opportunity to realise a historic radical-centre solution on Indigenous constitutional recognition now looms in the federal parliament. Leeser and Dodson can forge the pathway. Indeed, if they unite in commitment to the dual sensible impe
ratives of meaningfully recognising Indigenous peoples, and upholding the Australian Constitution, Leeser and Dodson together may be able forge the path to justice. Both will need resolve and courage. Both will need to back the Uluru Statement from the Heart.
The productive political tension is now back, and this bodes well. The Indigenous MPs have risen to the challenge posed by the Uluru Statement. Ken Wyatt contradicts Turnbull and seems increasingly in favour of an Indigenous voice to parliament. ‘Noel Pearson made the comment that it was not about vetoing parliament, it was not about a third chamber, it was about a voice that governments would listen to that represented a reflection of what came at a community level,’ Wyatt said. ‘If you build the model on empowered communities right around Australia then you would have very powerful local grassroots level voices percolating to the top and informing … Governments make the mistake of hand selecting people that they will listen to.’17
Linda Burney calls out Turnbull’s misleading ‘straw man’ arguments against the voice proposal, and Patrick Dodson, with impressive courage and honesty, characterised Turnbull’s rejection as a return to the ‘dog-whistle’ politics of the Howard era.18 These impressive leaders are no longer letting Turnbull off the hook.
And public support continues to grow, despite the rejection.
It grows despite the lies, and despite the fears. It grows because this is a just and modest proposal. It grows because this is a noble compromise, radical-centre reform, capable of bringing all Australians together.
Radical Heart Page 25
