Indigenous recognition steps outside Constitution
The editorial below was published in The Australian on 19 July.
The push for indigenous recognition in the Constitution goes back decades but has undergone a radical transformation over the past two years. When Cape York leader Noel Pearson raised a new plan in this newspaper in April 2015, it seemed to ask too much of the national debate too late in the process. It sought to take recognition outside of the Constitution altogether. Mr Pearson had taken up the ideas put forward by constitutional conservatives Julian Leeser and Damien Freeman, who suggested an extra-constitutional declaration would protect the nation’s blueprint from unintended legal consequences while allowing for more poetic and full-spirited expression. “This declaration might be indigenous Australia’s version of America’s Declaration of Independence, celebrating the indigenous, British and multicultural aspects to our unified national identity,” said Mr Pearson. The idea was aimed at mollifying the most conservative minds; instead of meddling with our legal architecture, the nation could coalesce around a symbolic statement. But the quid pro quo was to offer meaningful reform to advance indigenous aspirations. “It should make life better for our people in a practical way, in keeping with the nature of the Constitution,” Mr Pearson explained.
And so, the reasoning followed, the only change to the Constitution should be to mandate an indigenous advisory body. There is a compelling logic to the argument that if parliament is to have power over indigenous affairs, it should take advice from indigenous citizens. In reality it does that now (and has done under previous governments) through an arbitrary, hand-picked body. Mr Pearson, Mr Freeman and Mr Leeser (now a Liberal backbencher) argued that guaranteeing such a body in the Constitution would be low-risk and fair. Others, in our pages and elsewhere, have argued such a body would confer on indigenous Australians rights not available to others. These concerns are understandable but limited compared with those relating to certain other constitutional changes that had been promoted — such as a racial non-discrimination clause that would have amounted to a bill of rights for one section of the community. Few of us could reasonably suggest indigenous citizens should not have input into the administration of their affairs, such as native title, by the federal government.
The patient advocacy of hundreds of people involved in the recognition process thus far — weighing competing agendas from a minimalist focus on a preamble to the push for a treaty — is deserving of great credit. They have been sufficiently agile to adjust their demands and expectations in order to deliver a consensus around this recently devised compromise. There have been substantial modifications along the way, including the dropping of other demands to tidy up seemingly redundant constitutional provisions. The proposition put to parliament now is starkly simple: forget other changes to the Constitution, just mandate an indigenous voice (advisory body) and deal with recognition in a separate document that can be endorsed by all parliaments: federal, state and territory.
There are legitimate areas of debate and contention and much will hinge on the detail. What laws would govern the body? Would representatives be elected or appointed? Could it not morph into a funding body and dispenser of political favours like the axed Aboriginal and Torres Strait Islander Commission? Would this resolve the issue or presage continued agitation for a treaty? The declaration may be easier because it has been envisaged as recognising the crucial troika of indigenous heritage, British institutions and immigrant bounty: three strands around which the nation can unite.
The task of refining, explaining and advocating this proposal first within parliament and then, if accepted for referendum, across the community will be immense. Change is worthwhile only if it advances reconciliation in a meaningful way. For now it is crucial for politicians not to lose focus on the challenges of what John Howard called practical reconciliation — ensuring the vast resources expended on indigenous schemes work effectively in delivering better health, education, employment, engagement and prospects for indigenous Australians.