Indigenous body is about real recognition

, - June 5, 2015

This week I delivered the Lowitja O’Donoghue Oration at the University of Adelaide. I spoke about the political risks and challenges of a successful referendum to recognise indigenous people in the Constitution.

In highlighting the real prospects of a formal no case defeating a referendum on indigenous recognition, I was not suggesting there were not good reasons for clearly stating both sides of the argument. It is wrong to attribute opposition to government funding for the no case to me. I am not opposed to a no case being funded.

I’m simply stating facts: history tells us referendum questions are usually not supported when there is a formal no case. Bipartisan support is crucial. It cannot be championed by the Left alone. If the proposed amendments do not accommodate conservative objections and legitimate conservative concerns, then it will not succeed. In my speech I noted the real political challenges at hand. Only eight out of 44 past referendums have succeeded.

If the country is to vote yes to changing the Constitution, there must be open debate about the merits of any proposal.

That is exactly why I support the proposal put forward by Noel Pearson, Anne Twomey, Greg Craven, Julian Leeser and others, for an indigenous body, constitutionally mandated, to advise and consult with parliament on matters relating to indigenous affairs.

It is the only proposal that genuinely responds to conservative concerns. It respects and supports parliamentary supremacy. It does not transfer any power to the judiciary or invite courts to strike down parliament’s laws. It does not create legal uncertainty. It does not have the potential to hold parliament up in any way.

Twomey’s careful drafting demonstrates it is possible to ­design this constitutional amendment in a way that works with, rather than against, the essential nature and structure of the Constitution. The proposed constitutional procedure for the indigenous body to engage with parliament would be in keeping with the pragmatic, practical and procedural nature of our national rule book.

It is also the only proposal, in my view, that would put into ­effect indigenous aspirations for “serious constitutional reform” (to use Galarrwuy Yunupingu’s phrase). Indigenous people have petitioned and advocated for decades for national representation and a voice in the parliamentary process. This proposal would deliver this in a practical way. It does not involve inserting symbolic words into the Constitution. Symbolic words are not what indigenous people have been asking for. We want practical reform and authority in our own affairs.

The indigenous body proposal is about practical recognition: real, indigenous human beings, having a constitutional platform on which to be heard in the laws and policies made about us.

It is not an indigenous parliament, as Greg Sheridan and Andrew Bolt are keen on suggesting. It would be a consultative and advisory body. It is justified because parliament has a specific power to pass laws about our people and our rights. We are the only group parliament legislates for in this respect. It makes native title laws and indigenous heritage protection laws, of specific application to indigenous people.

The Constitution is the right place to guarantee our people a voice in the laws parliament makes about us. The Constitution gives parliament its powers. It also places constraints and conditions on those powers.

Conservatives say the High Court should not decide what is in our interests. They say parliament should decide. But we say indigenous people should be guaranteed a voice, a non-binding say, when parliament makes decisions about our futures. There should be a constitutional guarantee to this effect, along the lines proposed by Twomey.

Yes, I am nervous about a potential no case. No cases can be powerful because they need not be constrained by rational ­arguments. Fear is the most potent weapon that can be used against what we seek: our rightful place in the nation, a rightful place in the Constitution and a rightful voice in our own affairs.

But that does not mean we shouldn’t face our detractors head-on. Arguments against this kind of pragmatic, just reform can be refuted effectively.

This is because Pearson’s proposal intrinsically addresses the serious, intellectual objections we have heard from the Right. The proposal is exciting because it gives indigenous people something tangible, real and practical — a constitutional voice in our affairs; a representative body. But it is also robust, well thought out and defendable. It is the result of months of collaboration between indigenous leaders and constitutional conservatives. It deserves careful thought and debate.

If people want a no case, so be it. I believe this proposal has the potential to prevail on the strength of its own argument.

Bring on the national debate, too. This proposal can withstand robust critique. It will come out better and stronger for it.

Marcia Langton is foundation chair of Australian indigenous studies at the University of Melbourne.