Noel Pearson finds way to salvage referendum, advance his people

, - September 10, 2014

Noel Pearson_the australian_20140910

Cape York leader Noel Pearson, who is passionate about recognising indigenous Australians in the Constitution, pictured here at Noosa. Source: News Corp Australia

CAPE YORK leader Noel Pearson has offered a compromise position on recognition of indigenous Australians in the Constitution, conceding for the first time that “conservatives” will not ­accept making racial discrimination illegal and laying out a bold alternative proposal to reconcile the country.

Mr Pearson has written a Quarterly Essay — A Rightful Place, to be launched in Sydney tomorrow — that offers an olive branch to conservatives including Tony Abbott who are concerned prohibiting racial discrimination in the Constitution will lead to ­judicial activism.

In the landmark essay, Mr Pearson departs from his previous position as a member of the expert panel that called for an anti-racial discrimination clause in proposed changes, now arguing for a model that demands conservatives meet him and other indigenous leaders halfway.

Mr Pearson wants to avoid a “cut it in half”-style compromise —­ which seeks to find common ground with conservatives by splitting the difference between two options ­— and move to a compromise that may be better than the existing positions.

He says that, under his proposal, believed to be supported by other indigenous leaders including indigenous academic Marcia Langton who was also on the expert panel, constitutional recognition could include removal of the race clauses and the insertion of a replacement power to enable federal 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”.

Mr Pearson says “a new body could be established to effect this purpose, and to ensure that indigenous peoples have a voice in their own affairs”.

His new stance comes ahead of the Prime Minister’s trip to Arnhem Land next week, where the issue will be discussed and will be a priority.

The Weekend Australian revealed on Saturday that Mr Abbott had cautioned against moves to turn the proposed referendum on constitutional recognition of indigenous people into a charter of rights, saying it would fail if it became a de facto bill of rights.

Mr Abbott left open the option of delaying the referendum until after the next election to maximise its chances of success.

In the essay, Mr Pearson writes that in trying to understand conservative objections to the expert panel’s proposals it was important to understand the Australian mix of liberalism and conservatism, and the influence of constitutional conservatism — the influential group of constitutional experts who Greg Craven dubbed the “con-cons”.

“This group, convening as the Samuel Griffith Society, values ­liberalism and democracy,” Mr Pearson says.

“They insist on parliamentary sovereignty and are ready to ­accuse judges of usurping parliamentary democracy. They value the Australian Constitution as ­inherited wisdom.”

He writes that 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,” he says. “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.”

Mr Pearson’s essay puts pressure on Opposition Leader Bill Shorten, who has said explicit prohibition of racial discrimination in the main part of the Constitution is likely to be a condition of bipartisan support for any referendum to recognise indigenous people. Mr Pearson writes that 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 things are done in a better way.

“If conservatives assert that a racial non-discrimination clause is not the answer then what is a better solution?”

Mr Pearson is the first indigenous leader who has been arguing the case for significant constitutional change to place on the ­record an alternative approach.

With his searing essay, he seeks to push political leaders to move beyond a partisan debate and ­establish a true bipartisan position.

Mr Pearson writes that, when joining Rupert Murdoch and Tony Abbott in Sydney at the 50th anniversary of the founding of The Australian , his final remarks were crucial in explaining his case for change.

In his speech, he 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,” he said.

“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.”

Mr Pearson says the country needs to repeat the 1967 referendum, warning we cannot “just seek the endorsement of friends and allies”.

Mr Pearson’s Quarterly Essay will be launched with a lecture at the Opera House.

Quarterly Essay 55, A Rightful Place: Race, Recognition and a More Complete Commonwealth, by Noel Pearson, will be published on Monday.