Pearson’s proposals for Indigenous recognition deserve consideration

, - April 18, 2015

Many Australians are contemplating Noel Pearson’s proposal for a declaration of recognition “outside the Constitution”.

This proposal is a departure from the recommendations of the expert panel delivered to prime minister Julia Gillard in January 2012. The panel recommended removing the race clauses and replacing them with a neces­sary power to support laws for indigenous affairs and to recognise indigenous people. We recommended a clause to prevent rac­ial discrimination in laws and policies.Tony Abbott called the proposal a “one-clause bill of rights” and others agreed. After constitu­tional law expert and Australian Catholic University vice-chancellor Greg Craven wrote an article in The Australian Financial Review opposing the panel’s recommendations, he and other constitutional conservatives, including Damien Freeman and Julian Leeser, agreed to meet Pearson.Pearson, while not agreeing with their anti-bill of rights arguments, came to the conclusion that to avoid defeat of the referendum, it would be better to propose a scheme that could protect indigenous interests in a different way.

Indeed, to his surprise, Pearson found that this process gave rise to an idea potentially even better for indigenous people than what the panel had proposed.

To unite Australians across the political spectrum, and to give the referendum question every chance of succeeding, Pearson wants a question on creating a body to ensure that indigenous people have a voice and are guaranteed a say in laws and policies that affect indigenous interests.

He has said, “The parliament should be constitutionally required to consult with and consider the advice of the indigenous body when debating proposed laws affecting indigenous affairs.”

And further: “If we want to ensure that indigenous people are properly consulted in parliament’s law-making for indigenous affairs in Australia, then we need to say so clearly and explicitly in law … The procedure for proper consultation with the indigenous body needs to be spelled out clearly and explicitly in the Constitution, where it will carry political and moral authority, and won’t be struck down or ignored at whim.”

The great strength of Pearson’s proposition is that this would — for the first time in Australian history — overcome the underrepresentation of our indigenous population in parliamentary politics.

Shayne Neumann, Labor opposition spokesman on indigenous affairs, representing the people of Ipswich and district in southeast Queensland, has claimed that Pearson’s proposal is not supported by Aboriginal people. Wrong, Shayne. There have been many quiet, unreported consultations, precisely to avoid self-interested partisan politics.

Fred Chaney, who was a member of the expert panel, is saying that Pearson’s proposal has come “too late in the day”. Wrong, Fred.

The 2017 deadline for the referendum is artificial and was set for political reasons before a question was settled. What is the question? There is the expert panel question, and now Pearson’s alternative. There are two questions to debate. If the public cannot debate these questions what is the point of proceeding to a referendum?

Others want the impossible: a unanimous Aboriginal view. Are we animals that act on biological instinct alone? Or are we like all other human beings who disagree with each other often? Just look at the Senate deadlock at present that may trigger a double dissolution. Why is it only white people are permitted to disagree? Why is the opinion of one man, Warren Mundine, a sign of a “split” in the Aboriginal population? Healthy debate about substance shows intelligence. Debate about process and timelines is boring and nonsensical. Discuss the proposal!

Pearson’s Quarterly Essay, A Rightful Place, setting out the argument and proposition, was published in September last year. Neumann, Chaney, Mundine and everyone else with a sudden opinion on his recent speech in Sydney have had almost a year to consider his powerful and persuasive argument. Have they not read it?

Pearson was a member of the expert panel, as was I. Mundine was not. He has opposed the idea of our constitutional recognition consistently since the panel report was released. He has disagreed with Kevin Rudd, Gillard, Abbott, and Bill Shorten on this matter.

When the report was first released, he publicly accused us of encouraging legalisation of Aboriginal “child brides”. Last year, he released his grand plan for “treaties with each Aboriginal nation” as his alternative to constitutional recognition. The mind boggles.

Mundine is entitled to his opinion, but The Australian and its readers should be aware that, among Abor­iginal people, his is the minority opinion and the rest of us, while agreeing with the moral sentiment of the expert panel, are considering Pearson’s alternative as the likeliest to succeed, and the likeliest to result in practical outcomes for indigenous people.

Last year, Pearson sent each expert panel member a copy of his published essay, in which he first proposed his solution to this deadlock. This week he wrote to us to inform us about the support for his proposal:

I have stated my support of a conservative proposal for a symbolic declaration outside the Constitution. This group (is) now reciprocally coming out in support of the idea of an indigenous body in the Constitution, to consult with and advise parliament in its lawmaking for indigenous affairs. As you know, I am advocating a package of constitutional and other reforms. I have found important support from an increasing number of constitutional conservatives on this package, which includes:

  • Remove s 25
  • Amend s 51(xxvi) to become an indigenous power
  • Insert a new chapter in the Constitution establishing an indigenous body and setting out the rules for parliament to consider the advice of the body when debating proposed laws for indigenous people.
  • A declaration of recognition, outside the Constitution — containing the poetry and symbolism.

In short: symbolic recognition outside the Constitution, in a declaration. Practical recognition in the Constitution — including the indigenous body amendment.

This is the question: do we want to be litigants in court — through a racial non-discrimination clause or qualified power in the Constitution, which is going to be opposed anyway — or participants with a constitutionally mandated voice in the nation’s democracy?

Any substantive guarantees against racial discrimination in the Constitution, whether via a racial non-discrimination clause or a qualified indigenous power, will be judicially adjudicated. This means that courts will have to decide what is discriminatory or not.

But through Pearson’s proposal, at least our people would have a direct voice into parliament, influencing the political process. It would be non-binding, but it could be highly authoritative. It would be constitutional, after all.

This is a question of our vision for the nation and how we deal with the hangover of 19th-century racism in our Constitution and in our institutions. It is a question of how we manage multi-ethnicity, including indigenous people. We must cease to identify indigenous people as a race, as 51 (xxvi) does by default. We must find a way to honour the place of indigenous people in the Constitution.

I want to put it to you that the national vision should be — and I think Pearson has done a beautiful job in describing it as ‘‘completing the commonwealth’’ in A Rightful Place, but I want to give you a slightly different angle — what do we want indigenous Australia to look like in 20, 30 or 50 years? I think most decent Australians do not want our cultures, our lang­uages and all those distinctive things that pre-date British annexation to disappear, or to contribute in any way to their disappearance or demise. Most decent Australians want these cultural treasures to survive in a modern Australia, but how do we do that?

I believe we should think about a future in which indigenous Australians, in all socioeconomic aspects, have the same opportunities as other Australians.

Indigenous people should be economic citizens and have the same economic opportunities as everybody else, but we should also be able to retain our distinctive cultural heritage, including languages; song and dance performances; relationships with our land; religious beliefs, activities and protection of places; and other important aspects of our cultural heritage.

Marcia Langton is professor of Australian indigenous studies at the University of Melbourne and co-chair of Cape York Partnership.