Pearson indigenous recognition proposal can win broad support

Noel Pearson’s solution neatly sidesteps constitutional conservatives as well as radical activists.

Ex Cairns to the Australian 18.08.2015 National Native Title Conference - Port Douglas - PICS by BRIAN CASSEY , story Michael McKenna Noel Pearson after his landmark speech at th National Native Title Conference at Port Douglas(see Michael McKenna story) pic by Brian Cassey

The threshold question on constitutional recognition for indigenous Australians is: Why?

For those who ponder that question and decide recognition is worth pursuing — and all indications are that this is the overwhelming majority of Australians — there is vigorous and nuanced debate about the detail.

Earlier this month I wrote that Noel Pearson’s compromise proposal “complicates the issue” and yet, on consideration, it could also provide an attractive pathway to resolution.

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Given it was specifically designed to assuage constitutional conservatives — who are worried about substantive change to a document that has worked well for more than a century — this is, perhaps, not surprising.

For all its superficial complications, this model can do something we might have thought impossible: it has the potential to deliver the optimal outcome for constitutional conservatives as well as activists.

It aims to protect the legal integrity of the Constitution while giving a permanent voice to indigenous people in a way that does not confer special rights but is practically significant.

If leading advocates could coalesce around a version of this model the only cohorts disappointed would be the entrenched Right, who are opposed to any change, and the entrenched Left, who seek powers equivalent to an indigenous bill of rights.

The clear and present threat to a successful referendum remains a no campaign that unites these unlikely allies.

At heart, the Pearson model is comprised of two aspects that can be advocated with relative simplicity.

But first, the why question.

For some reason this proposed constitutional change resonates with most Australians — Newspoll is the latest survey to show two-thirds or more of us favour recognition in principle.

Apparently, we feel something is missing. There has never been a settlement with the indigenous element of our nation. We have conscripted indigenous words, learned history and embraced some culture, but during colonisation and again at Federation, indigenous interests and rights were not accommodated.

We have never properly incorporated into our structure — the federation that binds us together as a nation — the first peoples and their cultures. It is not about perpetuating distinctions on race but recognising that we introduced a Western culture into a land where cultures already existed.

With the wisdom of hindsight, we might recognise these peoples and their cultures deserve recognition as an integral part of the rich potpourri of peoples and cultures that make up our whole.

Sensible people of goodwill have every right to ask what the apology — for all the warmth and national catharsis — achieved for indigenous Australians.

It is not only fair but important that many people have become suspicious of emotional and symbolic posturing that often seems to crowd out the hard work of providing pragmatic improvements to indigenous living standards and opportunities.

Yet this is also an argument for why recognition needs to deliver a practical outcome rather than just another symbolic moment.

Over the centuries, from the vote to inclusion in the census, from recognition in some state constitutions to the apology, the institutional advances have been welcome and useful, but piecemeal. This is the point of substance behind Tony Abbott’s line about recognition “completing” rather than altering our Constitution.

Recognition could be a tangible way to acknowledge the past, end the pursuit of grievances and commit to closing the gap.

If you don’t agree, move on. You will need to vote against whatever is proposed.

But if recognition makes some sense, then it is worth your while to consider the Pearson model.

It is an attempt to reconcile the wariness of the constitutional conservatives, who will stand for nothing other than symbolism, with the aspirations of those, like Pearson, who want to do something about “the rules governing indigenous affairs in this country, to make life practically better for our people”.

Counter-intuitively, it takes the issue of indigenous recognition outside the constitution altogether. The attraction of this declaration of recognition should be obvious to the constitutional conservatives, because it will have no legal clout and no effect on the Constitution or any High Court rulings on constitutional matters.

It is constitutionally more benign than even a pithy mention in the preamble. All anxieties about unintended consequences, or a bill of rights by stealth, are alleviated.

Once we get over the sideways leap in this idea — a movement to win constitutional recognition switching to an extra-constitutional solution — it makes perfect sense. Perhaps even more attractive is the unhindered opportunity this would present for the expression of our national aspirations.

Ideally, it would be something less than 300 words reflecting our national past, present and future. It might pay due reverence not only to the nation’s indigenous cultural heritage but to the subsequent building blocks of our British heritage and institutions, as well as our multicultural migration.

In this way it could recognise the first Australians while mustering our splendidly diverse and tolerant mob around some common goals.

Given it would have to be embraced in a referendum, we know it would have to be an inclusive statement rather than an expression of black armband revisionism. At worst, it could be meaningless symbolism, and at best a cohesive statement of national purpose.

This brings us to the difficult part of Pearson’s compromise — the indigenous representative body. “Where are the constitutional rules and procedures ensuring that indigenous Australians are heard by the majority might of parliament?” Pearson asks in his justification for such a body.

The experience of the Aboriginal and Torrest Strait Islander Commission has tended to cruel this pitch for indigenous representation. But the corruption (in the broadest sense of the word) of ATSIC came about largely through its service delivery and funding roles, rather than its representative function.

Given there is broad public and political support (and current constitutional power) for Canberra leading on indigenous affairs, it stands to reason that government should have a process for taking advice on indigenous matters.

It is a stretch to call such an advisory body “radical”, as it has been characterised by Warren Mundine. The Prime Minister’s Indigenous Advisory Council, chaired by Mundine, gives the game away. No one opposes this council as a blight on democracy.

Mundine argues the very act of constitutional empowerment is what would make a new body radical. “What other race would be mentioned in the Constitution?” he asks, rhetorically.

Yet under Pearson’s model the Constitution would simply mandate such a body, so the formation, composition and selection processes would be left for parliament to decide.

Abbott, theoretically, could pass laws to formalise his hand-picked council, keeping Mundine in the chair. More likely, the government might want a body where at least half of the members are elected, either by indigenous Australians alone, or perhaps we could all have the option of voting.

Significantly, the Constitution would specify that the body’s advice would be non-binding. There would be no preferential treatment for one group of citizens over others — the government would be left to act, as ever, in the interests of all Australians and be accountable to them through the ballot box.

Clearly, advice tendered by this body to the parliament would carry public weight. But shunning its advice or mismanaging its processes would have only political, not constitutional, consequences.

The proposal would deliver a voice for indigenous people within the architecture of our governing institutions — but without upsetting our power balances or the equality of our citizens.

This is deft, and meaningful; beyond symbolism. This is not radical because it already happens without constitutional imprimatur. Rather than racist, it is just fair.

If it is wrong for a government to take advice from an indigenous advisory body, why does Abbott already have one?

Mundine has argued that such a body would introduce a radical race-based element into the Constitution. “I have a legislative body already, it’s called the NSW parliament, it’s called the commonwealth parliament,” he told me.

“I get the chance to vote in elections for those parliaments that make decisions. Either we’re all equal under the Constitution or we’re not.”

But giving people a voice on legislation affecting them does not make them more equal than anyone else under the Constitution.

If this were true, how could Mundine, in all good conscience, head just such a body now, minus only the constitutional and legislative fiat?

If we accept that the federal government can and should make laws and decisions on indigenous affairs, it would seem churlish, if not unreasonable, to argue that to take non-binding advice from an indigenous body on these matters would be racist.

The argument goes that this body would be set above all other government advisory bodies because it is mandated in the Constitution. And courts could then over-interpret its advice.

If a consensus is impossible on those grounds (and it is too early to tell) then there is a further compromise available: legislating the body.

Then the recognition package could involve minimal changes to the Constitution, to strip out redundant race clauses, with recognition occurring in a document outside the Constitution and an advisory body being formalised in separate legislation.

It is all getting a long way from where we started.

Underlying all this is the yet-to-be-settled question of what to do about the existing race power.

Expunging it sounds attractive — taking race out of the Constitution — but that would eliminate specific constitutional authority for the federal government in indigenous affairs.

Constitutional lawyers have debated various options, including whereby the reference would be specifically to Aborigines and Torres Strait Islanders, instead of broadly to race. Others decry this as simply narrowing the race element. So, subject-specific rather than people-specific wording has been proposed — but this, in turn, might be too restrictive.

University of Sydney constitutional lawyer Anne Twomey has considered these issues and proposed a prescriptive chapter to outline Pearson’s proposed advisory body. It should be possible to reach a workable consensus around the best option.

Could a less-is-more replacement of the race power work, with a power granted to legislate for “the affairs of Aborigines and Torres Strait Islanders subject to non-binding advice from a representative body”?

Rather than perpetuating a race power, it is possible to see formalisation of federal power over indigenous affairs as being more about giving constitutional authority to the government to legislate for a disparate group of Australians who happen to have special land rights (as recognised under common law and subsequent Mabo and Wik legislation) and unique challenges (as recognised under the common sense of national consensus).

This group is identified, in practical terms, mainly by race. That is just a reality we ought to be able to handle. It should not be beyond our wit, and generosity, to make this distinction.

Within weeks a parliamentary committee is expected to hand down its report on the search for a draft referendum question and the Prime Minister is hosting a bipartisan meeting with key players to advance the issue next month.

There is a long way to go and much detail to be discussed and debated.

This increases the sense that the multimillion-dollar Recognise campaign has run pre-emptively ahead of the hard yakka of pulling a proposal together.

For all the goodwill in the world it is ludicrous to expect people to say yes to a question that is yet to be constructed.

We have before us for discussion an imaginative mechanism that stakes out the middle ground between trite symbolism and an activist rights agenda.

The Pearson proposition proposes a poetic and inspirational statement of national recognition that is free of constitutional consequences, with the meaningful and useful trade-off of a forum for indigenous voices to be heard.

As the Cape York leader implores us to engage on these issues “with intellectual rigour and open-heartedness”, there is much talking yet to be done.