Shireen Morris: The Uluru Statement from the Heart
This is a revised version of a speech delivered at Geelong Grammar, on 7 March 2018.
For the last seven years I have worked as the constitutional reform adviser to Noel Pearson at Cape York Institute. Seven years working on Indigenous constitutional recognition, working with Indigenous leaders and constitutional lawyers, and trying to persuade politicians. Trying to find the common ground.
As a non-Indigenous advocate for constitutional recognition, some would say I occupy something of a strange position: I am descended neither from First Nation, nor from British coloniser. I descend from those who came after.
My ancestors came from India, by means of Fiji, where the British took indentured servants to work on sugar cane plantations. My parents came here like so many immigrants, in search of opportunity. But I do not hold dual citizenship - at least, not that I know of. I am simply Australian.
Like so many Australians, I was filled with hope witnessing the unprecedented achievement of the First Nations' Uluru Statement from the Heart, endorsed by standing ovation by the Indigenous delegates at Uluru in May 2017. I saw how far we had come in the constitutional recognition debate. I knew this was the best chance Australia has had, and perhaps will ever have, at meaningfully addressing the legacy of our colonial past.
Then, in October last year, in a statement full of mistruths, Prime Minister Malcolm Turnbull dismissed the Uluru Statement, and hopes were dashed. It was a callous display of the unilateral exercise of government power over the powerless. The historic First Nations consensus was summarily rejected by a government that, as usual, assumed it knows what is best for Indigenous people, better than Indigenous people themselves.
Turnbull claimed Australians would not support a First Nations voice to Parliament. He said the proposal was neither "desirable nor capable of winning acceptance at referendum." In my view, the Prime Minister severely underestimated the intelligence and good will of the Australian people. I believe he is wrong. Now polling has proved him wrong. I believe the majority of Australians would support this modest reform.
It's not the people blocking progress. The people want change.
Working on this issue has demonstrated to me that most Australians harbour a deep desire to resolve the fundamental torment of our nation - the nagging moral question that has troubled our country since 1788. The majority of Australians want to address the injustice that has for too long characterised this nation's dealings in Indigenous affairs. They want to see the First Peoples finally ensured a fair go in the life of our nation, and in our nation's Constitution.
Political action, however, is yet to match the people's intent. The politics is the problem, and the lack of morally courageous political leadership. Changing the Constitution requires a "double majority" referendum. But getting the support of a majority of voters in a majority of states is not unachievable - if only there were political leaders willing to champion the cause.
What we have seen in recent months is a surge of popular support for constitutional recognition, in the form of a First Nations voice, and a growing momentum that will not easily be beaten down. This moment for Australia is historically unprecedented. Consider the factors that have given rise to the current opportunity.
Through the Uluru Statement from the Heart, Indigenous Australians formed a historic national consensus on the reforms they want. This has never happened before. The advocacy of the past tended to emanate from particular regions or First Nations. Never before has there been a united, national Indigenous position.
The other remarkable thing is that key conservative supporters of the proposed reforms are lined up and growing in number. Those constitutional conservatives who would usually argue "no" to constitutional reform, on this issue are now saying "yes" - to precisely the same reform Indigenous people have asked for in the Uluru Statement. This has never happened before either. Labor and the Greens now support the proposals. And public support of the Uluru Statement is growing ever louder. It almost feels as if the nation is poised on the verge of breakthrough progress on this issue - despite the lack of political leadership. Just imagine if there was some.
Like I said, it is not the people blocking progress. The Australian people want to see a just settlement. But the time has come for the people to hold the politicians to greater account on this matter of national importance.
A Triune Nation
The context for this argument, as Noel Pearson eloquently observes, is that Australia is a triune nation. Our national story is in three parts which, brought together, make us one Australia.
There is our ancient Indigenous heritage, which is etched into our landscapes and runs in the veins of our rivers and seas. This heritage is rightful inheritance of all Australians.
We are also irrevocably shaped by our inherited British institutions: the structures of democracy and law that are fixed forever upon this land through the Australian Constitution, and commemorated in street names and structures like Melbourne's Queen Victoria's hospital and market, and the Windsor Hotel on Spring St., where the founders met in 1898 to finalise their draft of the Constitution. This British inheritance also endures for the benefit of all Australians: it has created our stable and prosperous democracy.
Finally, we have been enriched by our multicultural achievement: the gifts of peoples and cultures from around the world in which we now all share. Australians benefit from the achievements of immigrants and their descendants in the fields of medicine, science, business and the arts. We can enjoy all the fruits of multiculturalism, even as we traverse the colonial architecture, street names and statues that celebrate Britain.
But the most ancient part of our national trilogy is still largely invisible and out of reach for most Australians. The First Nations still lack their rightful place in our contemporary life. Most Australians remain unconnected to our ancient history. Why are there no statues of Indigenous warriors erected next to Macquarie or Phillip or Cook, to stare them down with pride and as equals, symbolising the ongoing dialogue that began with first contact, and that should now be formalised through a First Nations constitutional voice? Instead of talking about tearing down monuments, why are we not building new ones - monuments that tell the full and epic story of our shared country, with all its pain and conflict, its bloodshed and success?
Australia's best architects should be busy designing the constitutionally enshrined First Nation body, as called for by the Uluru Statement from the Heart, to be a permanent institutional embodiment of this country's First Nations heritage in Canberra. It should stand proudly in the Parliamentary triangle: a permanent Indigenous representative voice in our democracy. As Pearson has observed, the tents became demountables. The demountables should now become sandstone: a permanent building to pay tribute to the Tent Embassy and other Indigenous activists, who for so long have fought for their right to be heard.
The Constitution is about power, and national monuments are expressions of state power. Rather than tear down statues, institutions and Constitutions, we should adapt and expand them, so they better include and empower the First Nations. We should imagine Australia anew, and articulate a fuller expression of who we are.
The Uluru Statement and a Voice
The Uluru Statement from the Heart offered us a way to resolve the fundamental moral problem that has troubled our country since the British ships arrived: how do we create a fairer relationship with the First Nations of this land?
The problem was left unresolved in 1901: Indigenous peoples were not represented in the constitutional compact that created the Commonwealth. It was not answered in 1967: the referendum empowered parliament to make laws for Indigenous people, but it did not empower Indigenous people with a fair say in respect of those laws. It was not resolved in 1999: John Howard's proposed symbolic preamble would have changed nothing of substance, and it failed at referendum.
The Uluru Statement was enacted by Indigenous delegates from around Australia, after a series of regional dialogues. In forming this consensus, Indigenous Australians have done what everybody said they couldn't do. For so long people complained that there are too many disparate views in the Indigenous community, and so they don't know who to listen to! Well, Indigenous people have now done what the politicians asked for: they have spoken with one voice. They've done the work, canvassed the views, mediated the dissent, and achieved their majority consensus position. This deserves to be respected.
The Uluru Statement asks for constitutional recognition through a First Nations voice in the Constitution. A constitutionally enshrined Indigenous representative body, to guarantee Indigenous peoples will always have a say when Parliament makes laws and policies about them. The Statement moves away from a racial non-discrimination clause, which was proposed by the Expert Panel in 2012 but was roundly rejected by politicians as a "one clause bill of rights," and did not win the bipartisan support necessary for a referendum.
The Indigenous delegates were, in my view, right to step away from a racial non-discrimination clause. A similar clause didn't win political consensus prior to 1967, when it was proposed by Liberal MP Billy Wentworth. Back then, the Government did not want to give up its power to High Court. The same arguments hold sway today. One only needs look at the constitutional history to see how smart Indigenous delegates have been in adopting this approach. No attempts at inserting new rights clauses into the Constitution have ever succeeded at referendum. Australia can't even manage to implement a legislated federal bill of rights, let alone a new constitutional rights clause. Moving away from a rights clause, from a judicial, High Court solution, to a proactive, political, participatory solution, was an intelligent move on the part of Indigenous leaders. It is also in keeping with the decades of Indigenous advocacy for increased self-determination, representation and authority in their affairs.
The other smart thing the Uluru Statement did was step away from uncertain symbolism in the Constitution, which constitutional conservatives warn would yield unintended consequences - but which, more importantly, Indigenous people themselves have realised would make no practical difference to their lives. So why bother? It steps away from tinkering with the race clauses, which would fix nothing. Because, without a proper racial non-discrimination clause, removing the word "race" from the Constitution is just a cosmetic change.
The Uluru Statement is full of passion. It is written in inspiring and emotional prose. But the Statement is also so pragmatic and politically hard-headed. This is a practical reform and a modest request. The singular constitutional reform asks not for a veto, but a voice in their affairs, together with a Makarrata Commission, established in legislation, to supervise agreement-making. It is an approach that offers us a way to recognise and empower the First Nations of Australia to take responsibility and leadership in their affairs, while upholding the Constitution and unifying the country.
The Referendum Council report, delivered in June, backed up the Uluru Statement, and added the idea of a Declaration, outside the Constitution, to recognise the three parts of our national story. Practical reform to establish a voice within the Constitution; symbolic language outside the Constitution. This report was also remarkable and unprecedented. It is the first report on this issue that has intelligently melded constitutional imagination with constitutional conservatism. It is truly a "radical centre" report.
For if it takes a progressive like Bill Shorten to imagine how the future can be better than the past, it takes conservatives like Professor Greg Craven and former Chief Justice and Referendum Council member, Murray Gleeson, to discern how to make things better while upholding tradition and respecting our evolved democratic institutions. The Referendum Council report has done both. This is constitutional imagination firmly grounded in constitutional tradition.
A First Nations voice is the result of years of searching for the common ground. The Referendum Council found it: they found a way to achieve Indigenous aspirations for substantive, empowering reform, while upholding the Constitution. This is what must be understood: more than any previous report, the Council proposes reform distinctly in keeping with Australia's constitutional culture and design. It's no wonder Julian Leeser, an arch constitutional conservative who ran many successful "no" cases in the past - against the republic referendum, against a bill of rights and against the push for local government recognition - on this issue is in the "yes" camp. He says an Indigenous advisory body in the Constitution is "the kind of clause Griffith and Barton and their colleagues might have drafted, had they turned their minds to it."
Imagine, for a moment, this alternate history. Imagine if Indigenous heroes like Pemulwuy, Wyndradyne or Jundamurra had sat down with Griffiths and Barton at the Windsor hotel, or aboard the Lucinda on the Hawkesbury River, to draft the Constitution. Imagine if these Indigenous representatives were viewed by their colonial counterparts not as sub-human or inferior or as members of a "dying race," but as equal, empowered and worthy of fair and negotiated inclusion in this nation's founding agreement. It is likely they would have negotiated themselves a voice.
Because, consider our Constitution: it is a unity compact. It is the deal the colonies struck to form one nation. The rulebook set out how the disparate colonies would co-exist in peace and shared prosperity. The Constitution was a compromise between separateness and togetherness, unity and independence.
Australia's Constitution already recognises pre-existing political communities - the former colonies, now the States. It ensures their representation and guarantees them a say, a voice, in the government of the Commonwealth. Our Constitution is unique, because it protects our human rights not through a bill of rights, like so many other countries, but by giving the constituent parts of the Federation a fair say. That is the genius of our check and balance federal system. Even the minority states like Tasmania are guaranteed an equal voice in the Senate.
And there are more Indigenous Australians than Tasmanians.
The First Nations too are a distinct and pre-existing political community in our country. They were not at the negotiating table with the Founding Fathers when the original deal was done, when power was distributed and this Commonwealth was created. But they should have been. As a result of their omission, the Constitution that came into force in 1901 did not guarantee equal treatment, as in the United States; it did not guarantee distinct Aboriginal rights, as in Canada; and it did not guarantee specific Indigenous representation, as in New Zealand. And there was no treaty, as in all those countries. The Constitution affords no protection of Indigenous rights and interests whatsoever - and as a result, many discriminatory laws and policies ensued.
The Uluru Statement, and the Referendum Council's report, for the first time in Australia's history, offer a sensible and achievable way of rectifying this original omission. The reform proposed is, as eminent constitutional law Professor Greg Craven described, "modest yet profound." The proposal sensibly leaves the details of the Indigenous body design to Parliament. And crucially, it would give the First Nations a constitutionally guaranteed voice in their affairs.
This truly is a noble compromise, a "radical centre" proposal.
Malcolm Turnbull's Rejection
In October, the Turnbull government rejected the modest reform called for in the Uluru Statement, using what I think is one of the most dishonest press releases I have ever seen from a government. The press release contained five egregious errors.
The first error was that an Indigenous voice in the Constitution would undermine our equal citizenship, and would be contrary to the principle of equality. This assertion is patently false. Even if there was some constitutional principle of equal citizenship in Australia - which there isn't - an Indigenous voice in Indigenous affairs in no way runs contrary to principles of equality. We already accept the fact that our unequal constitutional system gives a fair voice to pre-existing political communities - even the very small ones; that our Constitution contains racially discriminatory clauses; and the fact that many of the privileges of Australians citizenship historically have been distributed unequally, especially with respect to the dark-skinned among us. Nonetheless, the Prime Minister incorrectly assumes some kind of equal constitutional citizenship operates in Australia.
It was Turnbull himself who vowed to "to do things with rather than to" Indigenous people - was that concept, the idea of consultation, contrary to principles of equality? The proposition that Indigenous people should have a better say in laws made specifically about them (native title, indigenous heritage, closing the gap, and so on) is no more contrary to principles of equality than Turnbull's own hand-picked Indigenous advisory body, that already exists and operates - albeit, predictably, not as effectively as it could. As Indigenous Health Minister Ken Wyatt has recently pointed out, governments have a tendency to pick advisers who tell them what they want to hear, and that they will listen to. That's why it is important that any Indigenous body be chosen by the First Nations themselves, to be a strong, independent voice to Parliament, adding rigour and accountability to policy making.
How can it be claimed that an Indigenous body to advise on Indigenous affairs is contrary to this mythical conception of equal Australian citizenship, when Turnbull's own trendy collaborative slogan and his appointment of Indigenous advisors to input into Indigenous affairs, demonstrate that an Indigenous voice is not only sensible, but crucial to making good Indigenous affairs policy? The false equality rhetoric is bogus, and shows the unprincipled nature of the arguments made against the Uluru Statement's modest request. An Indigenous voice in Indigenous affairs is not contrary to equality. That was the first error.
The second was that the proposal for an Indigenous advisory body was too short on detail. In fact, the proposal was deliberately designed to leave Parliament to design and enact the detail of the body, through legislation - this is how it respects parliamentary supremacy. This is why it is a constitutionally conservative proposal. It is Parliament's job to work with Indigenous people to create that detail, and the reality is that there is a plethora of policy detail upon which Parliament could draw - if it could be bothered. "Lack of detail" was an attempt to shirk responsibility.
The third error is that this proposal is tantamount to a "third chamber of Parliament." This is completely incorrect, and is in direct contradiction to what Turnbull himself told us in a meeting with Noel Pearson and me in June 2015, back when he was Communications Minister. In that meeting, Turnbull said the body proposal "sounds sensible." He even offered to help promote it, through a pub event in his electorate. But everything changed when Turnbull became Prime Minister. Then it became all about clinging to power, rather than wielding it for the national good.
The government's dishonest line that an Indigenous advisory body would "come to be seen as a third chamber of Parliament" was a dog-whistle to the far right. The proposal is no third chamber. It is a voice to Parliament, not in Parliament. An external advisory body, with no veto over legislation, and no power to make laws - whose make up, functions and operation is ultimately for Parliament to decide. The proposal involves no change to the make-up of the Houses of Parliament whatsoever. Indeed, Turnbull's own Minister, Ken Wyatt, now seems to have admitted it is not a third chamber of Parliament.
The fourth error was that this proposal came too late in the day. This too is untrue. Indigenous people have been asking for a stronger political voice their affairs since at least the 1920s, if not long before. Since William Cooper's letter to King George in 1937 asking for reserved seats in Parliament, since the Yolngu bark petitions in 1963, calling for fairer consultation in decisions made about them, and since the Barunga Statement in 1988, which called for an Aboriginal and Torres Strait Islander peoples body to oversee Indigenous affairs, and a treaty. A First Nations voice is about self-determination and empowerment. It is a very old idea, not a new one.
In terms of the current proposed constitutional voice, Cape York Institute first proposed it in 2014; it was put forward in numerous submissions; it was explained to the Prime Minister in 2015, when he described it as sensible. This contemporary version of the idea is now four years old. The excuse that the proposal has come too late is pure desperation. And, given we've all been waiting over 200 years for proper Indigenous recognition - are they really serious? We should take time to get this right and do it properly.
The fifth error is, perhaps, worst of all. The government's statement claimed that Australians would not support a First Nations voice in the Constitution, and predicted it would fail at referendum. The government did no polling before their rejection. Indigenous Affairs Minister Nigel Scullion said he didn't need to do polling - he was just following his gut. Yet an independent Omnipoll conducted last year, showed that 61% of Australians would vote "yes" to this proposal in a referendum.
Does that number sound familiar? It is exactly the same percentage of Australians who voted "yes" to same-sex marriage in the postal survey, which has now become law. Similar levels of support were shown in the more recent Newspoll. There is public support for this reform - even despite government actively arguing against it. The First Nations voice proposal is backed by Indigenous consensus; it is supported by Labor and the Greens. It has the support of respected constitutional conservatives, and a growing number of Australians are calling for this to happen. It even has the support of former PM Kevin Rudd, who noted his unexpected "unity ticket" with Alan Jones on this issue. That's right, Alan Jones - who of the proposed Indigenous advisory body, said, "How hard is that?"
As I have already said: it is not the people blocking progress, it's the politicians.
Earlier this year I was asked to do a short talk at the Wheeler Centre Festival of Questions at the Melbourne Town Hall. One of the questions was: Is a treaty more important than constitutional recognition of Indigenous peoples? I decided to argue that trying to rank the importance of a treaty against constitutional recognition is totally the wrong question to be asking. It is a false dichotomy. Both are equally important.
For a long time in this debate, you were either in the treaty camp, or you were in the constitutional recognition camp. Or, you at least ranked one as more important than the other. These two camps for too long divided Australians of good will. And when Australians of good will are divided on the right way to proceed, the political tension dissipates, and the government gets let off the hook more easily. The division has been detrimental to both causes. This division, I would suggest, helped lead to the rejection we saw in October.
The reality is the perceived dichotomy is false: constitutional reform and a treaty are complementary goals. Think about what both seek to achieve. Both are about power. Both constitutional reform and a treaty are about reforming an unfair power relationship - the relationship between the First Nations of this country and the colonising state, the Australian Government.
The practical reality is that the Constitution - whether we like it or not, whether or not we philosophically agree with it, or whether we think it is an illegal document or not - is Australia's highest legal and political rule book. It is the document that distributes power across the Commonwealth, and shares power out between the constituent parts of our Federation. The problem is, the Constitution creates for Indigenous peoples a position of perpetual powerlessness. It gives Parliament the power to make laws and policies about Indigenous people - and as we know, many of those laws, especially in the past, have been discriminatory. But it doesn't guarantee those laws will be fair, and it doesn't guarantee Indigenous people a say in those laws.
That is the problem constitutional recognition seeks to fix. It is not a problem that can be fixed with flowery words in a new preamble, or through mere symbolism. It can only be fixed with substantive constitutional reform, which is what Indigenous people are asking for. That is the purpose of constitutional recognition. It is about empowering the First Nations.
What is the purpose of a treaty then? A treaty or treaties have that same fundamental goal. Treaties too are about empowering the First Nations and creating a fairer relationship. Treaties too, if they are any good, should contain clauses that share power and enable First Nations empowerment.
So this perceived contradiction between constitutional recognition and a treaty is largely superficial and false. It is more about the name, the word, than the substance of the reforms. The dichotomy dissolves once you think seriously about the objectives of these reforms. Both are about power; both are about First Nations empowerment.
The Uluru Statement from the Heart undeniably exploded the false dichotomy once and for all. It was the first time Indigenous delegates from around the country got together to form a consensus on the reforms they want. I cannot over-emphasise how remarkable this was. In doing so, they had to rise above personal, political, ideological and cultural and language differences. They had to rise above their regional rivalries, urban versusremote or rural, north versus south. They had to get organised, and find their common ground.
There were, of course, dissenters. Seven people walked out of the deliberations, which is to be expected. No group can reach agreement without first sorting out the disagreement; dissent is a logical and necessary part of finding a majority consensus position. And frankly, it is ridiculous when people expect members of a minority group to always agree on everything. The fact that the delegates at Uluru got organised to form their majority position, given the immense diversity of Indigenous Australia, deserves our respect.
And the Uluru Statement was clear. It said: we want both. We want meaningful, substantive constitutional recognition through a First Nations voice, a First Nations representative body, guaranteed within the Constitution, and we want a Makarrata Commission, or treaty-making process, to be set up in legislation.
The Uluru Statement shows decisively that these two goals are not mutually exclusive. One is not more important than the other. They are complementary goals. And the practical reality is, the one supports the other. Because the First Nations are going to need a representative structure in order to negotiate and sign off any treaty with government. Having representation of First Nations is a necessary first step. There needs to be a structure, an institution, that can engage with Government.
When I observed some of the early treaty discussions in Melbourne, the need for a representative structure for the First Nations of Victoria was immediately recognised by the delegates. From what I understand, such a structure is currently being designed, because people see that you need representation before any negotiation with government can proceed. The same is true at the national level.
Then, predictably, some say, just legislate the structure. Why do we need to tinker around with the Constitution, which is so hard to change? Government should just legislate the First Nations body! To that I say: look how easily ATSIC, implemented by Labor then abolished when Howard was in power, was struck down by the flick of a white politician's pen. Look how easily other Indigenous representative bodies of the past got abolished, as soon as they become unfashionable or as soon as governments changed. That is why you need the constitutional guarantee. The Constitution is much harder to change than legislation. A constitutional guarantee provides permanence and stability.
Now that the Uluru Statement has exploded the false dichotomy, there is no longer any excuse for good-willed Australians to be missing in action. A better question to ask is: now that we know what reforms Indigenous people want, how are we going stand in solidarity with the First Nations to ensure they are achieved?
Constitutional reform is hard. It requires a double majority referendum. It needs everyone to do their part. But a treaty is hard too. The Hawke-Labor Government promised a treaty in 1988 and never delivered. It has yet to materialise. Both reforms need the active support of all Australians of good will.
A Call to Arms
After Turnbull's rejection of the Uluru Statement, Noel Pearson and I began calling out those LNP politicians who made positive remarks about the Voice when proposal three years ago, then slandered and rejected it in 2017.
One was Malcolm Turnbull. In 2015 he called the proposal "sensible"; in 2017 he calls it an abominable "third chamber of Parliament." One of them was Tony Abbott. During the regional dialogues and after Uluru, Abbott told Noel and me he had no issue with an Indigenous body in the Constitution. He encouraged us and congratulated us on the work we had done. Then when Turnbull rejected the proposal, Abbott agreed with him. Another was Christian Porter, now Attorney General, who in private meetings in 2015 told us the proposal was an "elegant solution," and even agreed to launch a book for us, such was his support. Then later, when Turnbull elevated him to the Social Services Ministry, Porter rocked up to our book launch and publicly argued against the proposal.
When I published articles calling out the fickleness of these politicians, some of my friends were a bit confused. "Politicians always change their minds for purely political gain," they said. "That's not a story. That's just politics. Why are you kicking up a fuss?" Their reaction made me realise that people are largely desensitized to politicians being fickle and mutable. We expect them to tell lies and not stick to their principles. We are so used to their self-serving behaviour, it almost feels wrong or unfair to call them out on it.
Yet, surely part of the lesson of this latest chapter in our history is that the time has come for us to ask for much more from our political leaders. We must demand they stick to their principles. We must demand they behave with honour. We must demand they treat the First Nations with respect. We must demand they act in the national interest, rather than just in the interests of their own political careers. Otherwise how will Australia ever move forward?
We Can't Miss this Opportunity
We mustn't underestimate the extraordinary and unprecedented political opportunity that lies before us, if only we Australians have the moral courage. We must not squander this historic opportunity because of our own complacency. Non-Indigenous Australians must now make a stand, speak up and support this modest, elegant reform. Indigenous people have done the hard work to form a consensus. Now it is time for all Australians to help put pressure on government to do the right thing.
We must not sit back and watch as the politicians kick this can down the road in favour of constitutional reform for a republic, constitutional reform to give themselves longer terms in power, or constitutional reform to water down their accountabilities under s.44 citizenship requirements. We must insist the government act to guarantee the First Nations of Australia a voice in their affairs.
This is what the Uluru Statement asks for. I do not believe this reform is beyond us as a nation.
Shireen Morris is a lawyer, McKenzie Postdoctoral Fellow at Melbourne University Law School and senior adviser at Cape York Institute. Her new book, Radical Heart, will be published by Melbourne University Press in July.