Building on the Uluru statement

, - June 4, 2018

The Saturday Paper
June 2, 2018

In July last year, the Referendum Council met with the prime minister. It was a historic moment, and many participants were optimistic that, finally, meaningful constitutional recognition was imminent. They had met to discuss the independent council’s report, which recommended an Indigenous “voice” to the parliament – an advisory body that would be constitutionally enshrined, but whose functionality would be prescribed by legislation. This was meaningful recognition, they argued – not some artful words in the preamble but “a form of ‘living’ recognition”. The “voice” would not be a third chamber of parliament. It could not pass bills, nor veto them. It would respect parliamentary sovereignty. It was, the council argued, a modest reform – and one they were confident the Australian people would endorse at a referendum.

Most importantly, the recommendation was the result of this country’s most extensive consultation to date on constitutional reform. It represented a consensus of First Nations peoples. As the Referendum Council’s co-chair Mark Leibler told a parliamentary committee last month, “In May 2017, the proposal of a constitutionally enshrined advisory voice to parliament was unanimously supported by Aboriginal and Torres Strait Islander delegates to the historic National Constitutional Convention at Uluru … The Uluru statement was the culmination of an inclusive, principled, and focused consultation process, the like of which Australia has never seen … Twelve hundred delegates took part in the Indigenous-specific dialogues, from a total population of about 600,000 Aboriginal and Torres Strait Islander peoples nationally. We believe this to be the most proportionally significant consultation process ever undertaken with Indigenous Australians.”

But the prime minister seemed affronted by it. Noel Pearson, a council member and Indigenous activist, lawyer and writer, later recollected in an excoriating essay that Turnbull was rude, petulant and expressed surprise at the recommendation. This reception foreshadowed the prime minister’s dismissal of the Uluru statement, which he did by media release in October. The voice proposal, Turnbull said, was inconsistent with Australia’s equality of representation and “would inevitably become seen as a third chamber of parliament”.

Pearson’s cri de coeur was published two months later in The Monthly, this paper’s sister magazine. His anger was white hot. “This month, belatedly, I had a bitter cold shower with the harshest old scrubbing brush and a long yellow slab of Sunlight soap, finally shedding the grease and grime of a long and dirty experiment that failed.” Indeed, it felt as if Pearson was declaring the time of death of his hope in reaching “the radical centre”. Here he was performing an autopsy on his faith in bipartisanship. “In the end Tony Abbott proved, like Turnbull, to be an opportunist.”

But anger was only half the story. Recalibration was the other. “This setback at the hands of these two people who never lived up to the leadership they sought is not our destiny.” Pearson’s essay was, in part, a bitter confession of “misplaced faith” and a denunciation of those he gave it to, but he gives the impression of a man cathartically discharging his anger as to better retreat to his original starting place of hope. This time, he did so with a revised strategy. “My strategy of reaching out to the political leadership of the right availed us nothing in the end. This is the bitter truth I learned these past 17 years. The political leadership of the right is to be distinguished from their constituency. As with the far left, the right has its ideologues and extremists. But the bulk of the Australian people incline to the radical centre if and when it is presented to them.

“So I have lost faith in the political leadership of the right but not its constituency. This constituency is ill served by its leadership, as surely as the nation is. Without the radical centre, bipartisanship is just the lowest common denominator. The radical centre is the sweet spot between realism and idealism, the real meaning behind the truism that politics is the art of the possible.”

With this in mind, Pearson made his appeal to the country in the form of a declaration this week – a tripartite composition of Australian society. “We should recognise the fact that Australia’s foundation is Indigenous and then we built upon it with the institutions we’ve inherited from Britain,” he told the ABC, ahead of delivering the Lowitja O’Donoghue Oration at Adelaide University. “We’ve achieved a great multicultural triumph on the top of that foundation. I think if we could come up with some words that really can carry us as a people, can carry our children into the future, that shows that recognition ultimately is a mirror. We’re not just recognising the Indigenous people of Australia, we’re actually recognising each other.”

A year on from the Uluru Statement from the Heart, the joint select committee on constitutional recognition relating to Aboriginal and Torres Strait Islander peoples is preparing its interim report, due by the end of next month. Its final report is due in November. The committee is co-chaired by Liberal MP Julian Leeser, a constitutional lawyer, and Labor senator Pat Dodson, both men who have previously supported the voice proposal. Given the proposal emerged consensually from unprecedentedly ambitious consultation, Leeser is aware that the committee may have partially condemned itself to redundancy. He has expressed his desire that the committee not insipidly repeat the process.

In his submission last month, Mark Leibler expressed his view that “the only available path for the committee to discharge its resolution of appointment is to recommend a process for building cross-party support for the model of recognition presented in the Uluru Statement from the Heart, which informed the recommendations of the Referendum Council … As a lawyer, I am a creature of instruction and the instruction on what Aboriginal and Torres Strait Islander peoples want and expect from constitutional recognition was made clear at Uluru.”

In his submission, Leibler, a senior partner at Arnold Bloch Leibler, listed the five principal arguments made by the government in the October dismissal: that it would “inevitably be seen” as a third chamber; that the proposal was new, and not raised in previous deliberations; that the model lacked detail; that it was inconsistent with equality of citizenship; and that it had little chance of being endorsed at referendum. Befitting his great legal experience, he dismantled each.

The “third chamber” argument is dismissed by Leibler as a misconception. “It is imperative that this myth be dispelled once and for all … [The] criticism is not one that can be reasonably maintained. All proponents of the voice to parliament agree that the body would have no power of veto on proposed legislation and its advice would not be binding on either house of parliament.”

I might add that there appears to be something cynically fatalistic in invoking a misconception as a reason to dismiss the proposal. The word “seen” in Turnbull’s statement appears significant, acknowledging not the substance of the criticism – for there is none – but the risk that the public’s belief in the misconception would compel their rejection of it. Which surely obliges the government to clearly and honestly explain the proposal, not to reject it.

Addressing the argument that it was a “new idea”, Leibler expressed disbelief that “members of the government appear not to be aware of the extensive work undertaken by Professor Anne Twomey, whose drafting of a constitutional provision for the establishment of an Indigenous advisory body in 2015 was described at the time as ‘the missing piece of the puzzle’ in constitutional recognition.”

What’s more, Noel Pearson wrote in December that he and his colleague, constitutional expert Shireen Morris, had personally briefed Turnbull about the proposal in 2015, when Turnbull was communications minister. Pearson wrote that Turnbull described it as “sensible”.

The question of whether the body would constitute unequal citizenship is an interesting one, but Leibler rejects it. “The Constitution allocates the Commonwealth parliament specific legislative power to make ‘special laws’ with respect to the people of any race,” Leibler wrote. “In substance, this power has been relied upon to make laws with respect to Aboriginal and Torres Strait Islander peoples. There is compelling force in the argument that this distinct power must be coupled with the opportunity and authority to seek to influence how that power is exercised. I am confident that, when properly understood in this context, Australian civil society would not view this as favouritism, unless of course that is the way the politicians choose to frame it.”

Interestingly, in 2011, as opposition leader, Tony Abbott wrote: “Because it is unique to our country, support for Aboriginal culture is a responsibility of Australian government in a way that support for other minority cultures clearly is not.”

Perhaps the weakest argument, Leibler wrote, was that the proposal lacked sufficient detail. “The Uluru statement and the Referendum Council report deliberately and advisedly did not detail the form or operation of the body because, to achieve the desired objectives of the proposal, and give the parliament and the people of Australia confidence in it, the detail needs to be developed by the parliament in respectful dialogue with Aboriginal and Torres Strait Islander people. It was blatantly obvious to the Uluru delegates and to the members of the Referendum Council that if such detail was in fact earlier prescribed it would be disrespectful to the institution of parliament and constitute a clear over-reach.”

Leibler effectively says to the committee that it should be all or nothing – that its recommendation to parliament should be either that it not proceed with constitutional recognition because the criteria for referendum success cannot be met, or that it recommend a process for a cross-party embrace of the Uluru statement. We’ll find out in November.