Remarks to the Key Forum
3 August 2019
Cape York Institute
If our cause perish it will not fall victim to truth. Only lies will defeat us.
If our cause for empowerment be wrecked it will not be because we steered our ship onto rocks of national strife and discord. All we seek is our rightful place.
If our cause be traduced by the slur of racial separatism and identity politics an original and just claim will be determined by these confected artefacts of cultural war, and not justice. For we seek what our ancestors have always sought: a just recognition we are indigenous to this land.
On 18 July the former Chief Justice of the High Court, Mr Murray Gleeson, in a landmark dissertation, laid out the truth of the recognition of a First Nations Voice under the Australian Constitution. Our modest yet profound proposal he prosaically described as “a worthwhile idea”.
Mr Gleeson’s speech is the last word on the legal integrity of the Voice and its seamless compatibility with the constitutional history of the Australian Commonwealth. Those who would scandalise the proposal and rouse fear through misrepresentation could never face squarely Gleeson’s luminous erudition and speak ill again. The one duty owed by all those who say they have fears and legitimate concerns, is to read the jurist’s analysis. For his mighty speech dispelled the cant and exposed the false intellectual foundations of the arguments mustered by the rejectionists.
Following Mr Gleeson’s address, our pleading to the Australian people is: “We rest our case.”
The only available rebuttal is to simply insist: we refuse your proposal, because we don’t want to support it.
Are we not entitled to expect when one such as Mr Gleeson, the nation’s most eminent black-letter legal conservative, gives his imprimatur to such a proposal, that Australians black and white, indigenous and non-indigenous, heed his counsel? Otherwise what kind of moral let alone legal community is Australia? One that only invokes the spirit of our rule of law and our constitutional heritage when it suits? Do these culture warriors really believe they know better than the country’s most senior elder of the law?
Mr Gleeson spoke to the truths, a survey the like of which this country never before witnessed on the subject of the Australian Constitution and Indigenous peoples.
The first truth concerned race. Our opponents in the Institute of Public Affairs attempt to put a liberal philosophical sheen on Andrew Bolt’s argument that a First Nations Voice would constitute separate treatment on the basis of race in the constitution. This argument succeeds only if you ignore the truth that our claim is on the basis of our being indigenous to this country, not on the basis of race. Bolt and the IPA remain steadfastly obscurant on this. They refuse the truth that if the Yolngu were blonde and blue-eyed, they would be no less indigenous to this Arnhem Land.
Bolt and the IPA know they can only maintain their argument about race through the dishonest conflation of indigeneity and race. This is rancid dishonesty. Bolt at least has what Professor Langton so lucidly called his “business model”, but what is the IPA’s excuse? Who would say to the Sami of the Arctic Circle or the Maori of New Zealand that their status is based on race and not that they are native to their homelands?
Moreover, Mr Gleeson points out the constitution already subjects Aboriginal and Torres Strait Islander peoples to the legislative head of power of the Commonwealth Parliament on the basis of “race” under section 51(26). The constitution already treats us distinct from other Australians on the basis of race, even if the 1967 referendum sought to recognise our citizenship in the Commonwealth, and that power has been used to enact special laws in respect of our status as indigenous peoples.
In an ideal world the constitution would not speak of race and only of indigeneity, but this is not its history and there is an array of laws and international jurisprudence concerning race, and importantly protection against discrimination on its basis, that cannot now be ignored or set aside. Indeed the Native Title Act amongst other things validates millions of otherwise invalid titles held by non-indigenous Australians – which relies upon the race power. Do these libertarians really want to reopen the validation of backyard titles, not the least mining titles, following Mabo and Wik? These young boys dispatched by the IPA like so many child soldiers to disseminate this kind of pap, simply do not know what they are talking about.
The second truth concerns equality. The IPA again cloaks its argument under a commitment to liberal democracy, blithely ignoring that liberal democracies worldwide – not the least its most leading exemplar, the United States of America – recognise the native peoples as indigenous under their constitutional law. They never mention the domestic dependent nation status of Native Americans, and accommodations reached in other liberal democracies.
Moreover they vaunt a principle of strict equality under our constitution, the absurdity of which Mr Gleeson points out: our federal constitutional structure guarantees a one-vote, one-value equality in representation in the House of Representatives and a highly unequal representation in the Senate, giving 7 million New South Welshman 12 senators and a half million Tasmanians 12 senators. The IPA assiduously avoid the facts of federalism in their rhetoric on liberalism and equality.
Surely the starting place for a convocation dedicated to a grand philosophical tradition might be honesty?
A third truth is the proposal for a First Nations Voice is constitutional conservatism in origin and in nature. In a 2016 collection of essays called The Forgotten People, the following names wrote in support of recognition in some way:
- former BCA Chairman Graham Bradley
- Australian Catholic University constitutional conservative Vice Chancellor Professor Greg Craven
- legal academic Fergal Davis
- conservative philosopher Damien Freeman
- former Governor-General Michael Jeffery
- right-wing commentator Chris Kenny
- now Liberal MP and former head of the Menzies Institute Julian Leeser
- psephologist Malcolm Mackerras
- former Cardinal George Pell
- Australian Christian Lobbyist Lyle Shelton
- constitutional professor Anne Twomey
- former head of the Australians for Constitutional Monarchy Lloyd Waddy
- and now liberal MP Tim Wilson
Conservatives and liberals including Jeff Kennet, Nick Greiner, liberal Senator Andrew Bragg and former head of the armed forces, Angus Houston, are supporting the movement to Uphold the Constitution and Recognise Indigenous people.
Mr Gleeson is particularly acute in explaining the constitutionally conservative nature of the First Nations Voice: it does not diminish the supremacy of parliament. It would advise parliament in respect of the power to make “special laws” that only apply to Indigenous people. Professor Greg Craven says the Voice runs with the constitution rather than against it
So where will we be if the campaign of lies led by the IPA succeeds in the destruction of truth?
The movement for justice for our people swings in an arc from radical pessimism to radical hope. I could never live in radical pessimism but I understand the bitter mountains of evidence and arguments in its favour. I champion radical hope, and I believe I share this disposition with a great many, perhaps the majority of my fellow indigenous leaders and activists. Certainly the Uluru Statement from the Heart and the proposal for constitutional recognition of a First Nations Voice is an expression of such hope.
There is also naïve pessimism and naïve hope. Our movement is highly susceptible to each and they should be abjured: there is never a good time for naïvete. Reconciliation for the sake of feeling good disserves our movement: there must first be justice. Pessimism for the sake of purity of posture is also disservice.
I argue Nixon must go to China on constitutional recognition – that is that this reform must first be a constitutionally conservative cause from the right and not a progressive cause of the left. This we have done. The First Nations Voice is such a cause.
Our challenge is to keep transcending the Left-Right binary of The Great Mainstream Tribes of Australia, and to stay above their culture wars. But our cause is being sucked into the cruel vortex of these useless conflicts between white progressives and white conservatives.
When I consider race and racism concerning our people in contemporary Australia I still see the original sin of racism as a living legacy, but it would be wrong to see the past as its sole or even main source. For I also see white Australians struggling to work out where to fit the original peoples in their scheme of Australia. Aboriginal people have long occupied a strange corner of the Australian imagination the adjustment of recognition is highly disconcerting. This is the fear of our rightful place. A third aspect of racism is that it is very much a dynamic of white versus white over black, we are the subject of conflict rather than a protagonist.
What future will the centrists and conciliationists have after failure? This is the terrible question we cannot and need not answer today. We can only keep the course we are on and to hold tightly our radical hope. Politics is the art of the possible but for our cause of truth to face defeat at the hands of the IPA’s lies would be for the country and its political leadership to say the only possibility is some form of continuation of the denial of recognition.
If there be failure then the centrists and conciliationists will fall silent, for the path we have chosen will have led nowhere. A new generation will determine what must be done and we can only stay silent or follow. But we are not yet there, so while hope still lives we must keep running.
I want to thank the Gumatj of Gulkula, my Yunupingu brothers and family and the Yolngu of North East Arnhem Land for this gift of Garma you once again give to all of us. I want to make one last argument about the urgency of now.
I mean not to diminish the rightful claim to recognition of all First Nations across the country in saying that the urgency of recognition is especially serious for our most traditional societies. The Yolngu of this land need Australia to afford them the chance of defining what Galarrwuy Yunupingu called “a modern version of ourselves” under the framework of constitutional recognition of their right to be themselves and to retain their high culture and languages in all their classical glory. The interweaving of the Enlightenment and High Culture of the Yolngu must be a journey of their own choosing, and the terrible structure of forced assimilation must end. The Yolngu need the freedom to define their future, anchored in their own heritage.
This is the urgency of now. This is the chance to do that which was not done in respect of the rest of Indigenous Australia: to give life to the radical hopes the Yunupingus and other Yolngu have for the future of their society. May they endure long on the earth.