Patrick Dodson and Noel Pearson forge a pact on constitutional recognition

Patrick Dodson and Noel Pearson forge a pact on constitutional recognition

Tony Abbott called it an important and historic day, and it was, with the Prime Minister expressing optimism that a referendum could be put to the Australian people in May 2017 to end “that echoing silence” on Aboriginal and Torres Strait Islander people in the nation’s founding document.

But all too soon, after the happy group photo opportunity and media conference on a sunny Monday at Kirribilli, there was nothing. In the 12 days since the Prime Minister and Bill Shorten hosted an unprecedented meeting with Indigenous leaders, the subject they discussed slipped off the nation’s political radar.Abbott has travelled extensively since the meeting, but has neither raised, nor been asked about, the issue of constitutional recognition of the first Australians – not at media events in Grafton, on the Gold Coast, in the southern tablelands of NSW or back in Canberra.

The only follow-up remarks came from two of the Aboriginal participants, Noel Pearson and Ken Wyatt, and both served to underscore the fragility and uncertainty of the enterprise.

Pearson complained that the event was so stage-managed he would have preferred to have stayed at home with his kids at his Cape York beach house and send down a cardboard cut-out in his place. Wyatt, who chaired the parliamentary committee that recommended the referendum question include some form of ban on racial discrimination, volunteered that this was highly unlikely to eventuate.

This raised an awkward question: why was the recommendation included in the committee’s unanimous report if the chairman, the only Indigenous member of the House of Representatives, didn’t think it would fly?

No one delivered a more sobering post-summit reality check than constitutional lawyer George Williams, who appeared on a panel at a sold-old event hosted by the Wheeler Centre in Melbourne on Wednesday and was asked by presenter Madeleine Morris when the referendum was likely to be put.

“2017 is possible, but not at the rate we are currently moving,” he said. “At the rate we’re currently moving, I think this decade, or even next decade, will be a bit unlikely.” The problem, as Williams described it, was a lack of political leadership. “Without political leadership and commitment, we’ll never get past the community conversation stage, where we have been since 2007,” he said.

Frank Brennan, the Jesuit scholar with a long history of engagement with Aboriginal issues, agreed, telling the audience: “It’s just not good enough just to take a hands-off approach and see what percolates to the top. That’s not the way to get constitutional change. I give our elected leaders full credit for what they did at Kirribilli for a couple of hours, but there has got to be ‘skin in the game’ and there has got to be a real commitment and engagement, and it just hasn’t been there.”

Abbott has demonstrated his interest in Indigenous Australia by spending time in Aboriginal communities every year and next month will run the country from communities in the Torres Strait. But, despite promising to “sweat blood” for the cause, he has shown no willingness to lead this debate.

When the expert panel appointed by the Gillard government presented its report in January 2012, proposing the referendum question include a ban on racial discrimination, Abbott chose not to respond beyond expressing “reservations about anything that might turn out to be a one-clause bill of rights”. Since then, he has said little beyond observing last year that the referendum was more likely to succeed if it was “spiritually ambitious” but legally conservative.

Pressed after last week’s summit on whether he had an obligation to make it clear whether proposals such as the racial discrimination ban were unacceptable, he replied: “I don’t think it would be fitting for me or other authority figures to be saying at this point in time, ‘it’s got to be this or it can’t be that’.”

Now, in the absence of clarity from Canberra, the country’s two most significant Indigenous figures, Pearson and Patrick Dodson, have taken charge, forging agreement with other Indigenous leaders on a way forward that offers some grounds for optimism.

Having been a member of the expert panel that proposed the racial discrimination ban, Pearson read the wind, decided it was not a goer and proposed an alternative: an Indigenous body recognised in the constitution to ensure that Aboriginal and Torres Strait Islander voices were heard on legislation affecting them.

As he saw it, the ban on racism was preferable, but unlikely to win support for two reasons. The first was pragmatic: a blanket ban could have “unintended consequences”, threatening the validation of native title that was only achieved through the suspension of the Racial Discrimination Act. The second was ideological: that constitutional conservatives would see the ban as a step toward a bill of rights, taking power from executive government and handing it to the courts.

George Williams argues that both concerns are manageable. Unintended consequences could be dealt with by making the change prospective and not about past acts. As for the “one-clause bills of rights”, he says the argument has no substance. “It is just one clause, a very small part of what a bill of rights would be.” But he concedes the ban is problematic if one side of politics opposes it.

Among the Indigenous leaders at last week’s summit there remains overwhelming support for the racial discrimination prohibition championed by Dodson. After all, the constitution was the ultimate authority for this country’s history of racism against Aboriginal and Torres Strait Islander people, including control over who they could marry, where they could live, payment of inferior wages, the forced removal of children, dispossession.

But there is also growing support for Pearson’s proposed body.

While Abbott and Shorten agreed to a loose formula to advance the issue, Pearson and Dodson have proposed something far more concrete that they believe will result in an Indigenous consensus.

Pearson, from Cape York, and Dodson, from Broome, have joined with Megan Davis and Kirstie Parker to propose a process that begins with Aboriginal and Torres Strait Islander people agreeing on the question they believe should be put to the people.

It would see a partnership of Indigenous organisations run conferences across the country and debate the political constraints, legal complexities and practical application of the models on offer, culminating in an Indigenous national convention that would agree on a preferred model that would then be subjected to broader debate.

The key to their agreement is not simply the willingness to do all in their power to forge an Indigenous consensus. It is the mutual commitment to throw their considerable weight behind the model that emerges, regardless of their personal preferences.

That is the essence of leadership.

READ: Brisbane Times


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