‘Time to bring us into the nation’ through constitutional recognition

, - September 13, 2014

Noel Pearson_the australian_20140913
Noel Pearson is calling for indigenous people to have their voice built into the parliamentary process.
Source: News Corp Australia

HAD Galarrwuy Yunupingu and his dilak elders been present at the creation of the Commonwealth of Australia in 1901, there might have been a scene like this:

I wait for the new prime minister … An event is taking place at Yirrkala and I have called the leaders of the 13 clans together. No children or young people will participate, only leaders, men and women who have proved themselves: dilak. By my side are Djinyini Gondarra and the leaders of the Elcho clans, Richard Ganduwuy and Dunga Dunga Gondarra, Butharripi Gurruwiwi. Wilson Gan-ambarr, Gali Gurruwiwi, Gekurr Guyula and Timmy Burrawanga are there. Laklak and Dhuwarrwarr Marika are there, too, along with the great old man from Gan Gan, Garrawan Gumana. My cousin Banambi Wunungmurra brings the prime minister down to us. We have a petition for him.

Learning of the cataclysmic history experienced by Aboriginal tribes in the coastal south and east of the country and the inexorable expansion into the west and the north in the first 110 years of European colonisation, and fearing the time when the Yolngu of Arnhem Land would face the same devastation, Yunupingu might have presented Edmund Barton — along with Samuel Griffith and the other founding fathers of the new nation — with a petition, as he did Kevin Rudd in 2008:

We, the united clans of East Arnhem land, through our most senior dilak, do humbly petition you, the … Prime Minister of Australia, in your capacity as the first amongst equals in the Australian Parliament, and as the chief adviser to Her Majesty … to secure within the Australian Constitution the recognition and protection of our full and complete right to:

• Our property, being the lands and waters of East Arnhem Land;

• Economic independence, through the proper use of the riches of our land and waters in all their abundance and wealth;

• Control of our lives and responsibility for our children’s future.

EVERY nation is a unique creation. All democracies are not the same. Every society that has ever created a constitution has had to deal with a unique history and circumstances. There is no template democracy. There’s no template nation.

In 1901, when the Australian nation was created, it reflected the ideas and biases of the time. One bias had as its cornerstone the exclusion of the native peoples of this country. It took a long 66 years before that exclusion from citizenship was remedied in 1967.

Back when the referendum was crafted and overwhelmingly endorsed by the Australian people — 90 per cent of the country voted in favour of it — there was not one indigenous lawyer in the country, let alone an indigenous constitutional lawyer involved in the drafting of the amendment. Now, leading indigenous legal intellectuals such as Megan Davis are driving these developments.

Even the greatest democracies are a search for a better unity. National democracy is not just a lapidary achievement. No nation has created the perfect unity. Facing racial conflict, President Barack Obama invoked the idea that the US is on a journey to a “more perfect union”. Ours is a journey to perfect our commonwealth and the unity it is intended to ­represent.

During my involvement on the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, set up by Julia Gillard, I became convinced that the basis of our inclusion in Australian citizenship in 1967 was fatefully wrong.

We were included as citizens of our own country on the basis of race, and that too reflected the bias of the time.

In the decades leading up to the 1950s and 60s, and for a long time after, it was commonplace to talk about people of different races. So it is understandable that in 1967 the basis of our citizenship was determined in section 51 (xxvi) — the race clause.

In retrospect, I saw — largely through the arguments of my colleagues on the panel — that our inclusion in the citizenship of the country on the basis of our alleged race was a momentous misstep.

It was wrong, in fact. Today we understand that there are no races. And as long as human societies have assumed and perpetuated the idea that there are distinct races across the world, much misery has resulted.

Today we understand there are no distinctions to be made among peoples on the basis of race. We are a human race. While we do not share a uniform culture, language, religion and ethnicity, we do share one characteristic: we are members of a single race.

As long as we have a Constitution that characterises Aboriginal and Torres Strait Islander peoples on the basis of race, it will have deleterious implications for their citizenship. It must be removed. With the knowledge of hindsight, we must perfect the basis of our inclusion in the nation.

I believe the psychological and practical implications of these reforms will be profound. This is not just a matter of symbolism. I think this will be a matter of psychology.

The day we come to regard ourselves as people with a distinct heritage, with distinct cultures and languages, but not of a distinct race will be a day of psychological liberation. And it will also be liberating for those in the wider community who treat us as members of a distinct race, with all of the freight that accompanies this.

I believe constitutional reforms that remove the concept of race will have concrete, practical implications for indigenous wellbeing across this country.

We have made many gains since 1967, but we have been significantly hobbled as well. And the chief thing that has hobbled us is the concept of race.

This does not mean that when we get rid of race in our thinking, racism will not exist. There will still be discrimination. But such discrimination is based on an illegitimate idea: that people are different according to some racial criterion. So there will be need for protection against the illegitimate concept through the Racial Discrimination Act 1975.

I see no contradiction in banishing notions of race from our Constitution while at the same time ensuring protection of peoples against the illegitimate use of this distinction.

ON July 15 this year I had the honour of joining Rupert Murdoch and Tony Abbott in Sydney at the 50th anniversary of the founding of The Australian . In my remarks I said that:

When the history of indigenous reform is written, the place of The Australian under the editorship of Chris Mitchell will be plain … Mitchell opened the pages of The Australian to all shades of debate and indigenous leaders and commentators: no other mainstream platform comes close. Like the paper’s founder, the paper’s editor these past 12 years seems impelled by an unremitting sense of native duty to the nation by taking his indigenous brethren with utmost seriousness. Rosemary Neill’s courageous coverage of tragic violence against Aboriginal women. Tony Koch’s pursuit of Mulrunji’s death at the Palm Island watch-house. Paul Toohey’s searing stories of the petrol-sniffing Hades in the centre. These all echo the proprietor’s campaign in The Advertiser in the Max Stuart case in 1959 abolishing the death penalty.

The Australian treated these subjects not because it believed the country’s indigenous peoples innocent or guilty, right or wrong, noble or ignoble — but because the paper believed in our humanity, and that we and our affairs should not be left on the woodheap of the democracy. No paper welcomed indigenous writers and political leaders more than this one. The late Charlie Perkins, Marcia Langton, Galarrwuy Yunupingu, Patrick Dodson, Lowitja O’Donoghue, Warren Mundine and more have been regular protagonists in the national conversation in the national paper.

For those like me whose reform policies have been steadfastly supported by the paper’s editorials, we have not been spared contrary views and criticism in news reporting and commentary. The dialectic of the national conversation plays out in the pages of The Australian.

This was a privilege for me: to witness Murdoch, one of those rare Australians whom the thoughtful senator from Queensland Brett Mason — in a forthcoming book on such figures — correctly identifies as having in some way changed the world, pause to reflect on a 50-year milestone on his journey.

I think that not to marvel at Murdoch’s colossal media exploits and take some borrowed pride from the fact that, like Don Bradman in cricket or Howard Florey in medical science, he is Australian is as absurd as denying the global impact of Robert Hughes on art or Germaine Greer on feminism.

There may or may not be some validity in the suggestion that the levelling instinct of Australians is a salient contribution of indigenous peoples to the national character, but at the heart of that instinct lies a cringe that makes us a smaller nation, with a smaller sense of our own possibilities, when we don’t recognise it as a double-edged sword.

I suspect our aggressive egalitarianism is the engine that drives individuals to take on the forces of the establishment — witness the “Dirty Digger” taking over the London Sun — but it can also see the rest frantically determined to chop down the very outliers who have challenged and beaten the powers-that-be. This is our psychological, rather than cultural, cringe. One side of our egalitarianism challenges the status quo and the other preserves it through levelling.

It was for me a signal event. I tell this story to give a context to my final remarks to that audience, in which I set out how constitutional recognition of indigenous Australians would allow the nation to reveal our true nature and the great hidden architecture of our commonwealth:

Our nation is in three parts. There is our ancient heritage, written in the continent and the original culture painted on its land and seascapes. There is its British inheritance, the structures of government and society transported from the United Kingdom fixing its foundations in the ancient soil. There is its multicultural achievement: a triumph of immigration that brought together the gifts of peoples and cultures from all over the globe — forming one indissoluble commonwealth.

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.

The colonial history that I have revisited in my Quarterly Essay, A Rightful Place is the reason why the relationship between our indigenous heritage and the country’s British heritage has eluded us. As troubled as this history is, and as troubling as it will be for the foreseeable future, these two things are the heritage of Australia. There is no denying it. It is the ­reality and it is the truth, no matter how much white Australians might want to ignore it or black Australians might want to reject it. Whatever the mutual denial of the past, the future must be one of mutual recognition.

THERE are two reasons Australian conservatives should support constitutional recognition of Aboriginal and Torres Strait Islander peoples. First, conservatism sees intrinsic value in tradition and inheritance — like our British heritage, indigenous tradition and inheritance is important and should be recognised and maintained. Second, conservatives value national unity. They disavow separatism, collectivism and division among citizens, preferring instead individualism bound by a common sense of national unity and patriotism. That is why they should support the removal of references to “race” that serve to divide citizens.

In trying to understand conservative objections to the expert panel’s proposals, it is important to understand the Australian mix of liberalism and conservatism, and the influence of constitutional conservatism — the influential group of Australian constitutional experts whom Greg Craven dubbed the “con-cons”. This group, convening as the Samuel Griffith Society, values liberalism and democracy. They insist on parliamentary sovereignty and are ready to accuse judges of usurping parliamentary democracy. They value the Australian Constitution as inherited wisdom.

It is because, as Waleed Aly observed in Quarterly Essay 37, “tradition has its own force and wisdom” that the conservative disposition prefers organic evolution to revolution in society. Conservatives approach constitutional reform with extreme caution. According to Aly, conservatism is “resistant to ideological zeal”: it “eschews utopian designs and adopts far more modest and pragmatic approaches to policy”.

This explains conservative resistance to including principles such as “equality” or “non-discrimination” in the Constitution. While valuing free and equal participation in a liberal democracy, conservative pragmatists do not think such ideals can be protected simply by writing them into the Constitution. Such alterations risk giving the judiciary too much power.

In their strong aversion to activist judges, constitutional conservatives tend to forget the history that has driven this conversation about constitutional recognition.

Conservatives are concerned with limiting judicial activism, and therefore do not want symbolic words or sweeping “rights” clauses in the Constitution. Indigenous advocates need to take these views on board.

But what conservatives in turn need to understand, in an effort to find consensus, is that for indigenous people the movement for constitutional recognition has always been about achieving constitutional protection and recognition of indigenous rights and interests within Australia.

It is about reconciling the fact that there were peoples here before the British arrived, and making provision for those peoples and their interests to be recognised within the nation.

Symbolism and poetry is only one part of it. Substantive change in the national approach to indigenous affairs is the other.

Conservatives need to understand our position, too. Our people lived through the discrimination of the past.

We have a legitimate anxiety that the past not be repeated, and that measures be put in place to ensure thingsare done in a better way. If conservatives assert that a racial non-discrimination clause is not the answer, then what is a better solution?

In a recent paper, The Australian Declaration of Recognition, Julian Leeser and Damien Freeman assert that the Constitution is a rule book, a practical charter of government that sets out power relationships, such as between the commonwealth and the states. It is not a vehicle for aspirations and symbolism: these can be articulated in a declaration, not in the constitution proper.

But if the Constitution is a practical rule book governing national power relationships, then we should also accept that there is one very important national power relationship that it clearly does not address.

Arguably, therefore, the rule book should be amended to make provision for indigenous people to be heard in indigenous affairs.

After all, if unelected judges should not decide what is in the interests of indigenous people, then who should decide?

Indigenous people comprise only 3 per cent of the population and hardly get a fair say in parliament, even on matters directly concerning them.

Parliaments have never been good at listening to indigenous people. This is why the discrimination of the past has occurred. This is the elephant and the mouse problem that has characterised indigenous affairs.

We can find a way of ensuring that indigenous people get a fair say in laws and policies made about uswithout compromising the supremacy of parliament. Perhaps we could consider creating a mechanism to ensure that indigenous people can take more responsibility for our own lives within the democratic institutions already established, and without handing power to judges.

As mentioned, conservatives should agree with the removal of racial discrimination from the Constitution. They believe in ­national unity and dislike internal divisions, separatism and collectivism. They must now also turn their minds to how the Constitution might be altered so that the discrimination of the past cannot happen again.

We don’t want separatism: we want inclusion on a fair basis. We want to be inside the decision-making tent. We want our voices to be heard in political decisions made about us. A mechanism like this — guaranteeing the indigenous voice in indigenous affairs — could be a more democratic solution to the racial discrimination problem.

Constitutional recognition could therefore include removal of the race clauses and the insertion of a replacement power to enable the commonwealth parliament to pass necessary laws with respect to indigenous peoples, and incorporation of a requirement that indigenous peoples get a fair say in laws and policies made about us. A new body could be established to effect this purpose, and to ensure that indigenous peoples have a voice in their own affairs.

This is an edited extract of Quarterly Essay 55, A Rightful Place: Race, Recognition and a More Complete Commonwealth by Noel Pearson, available nationally on Monday.