August 2015


Process of recognition

By Noel Pearson
Process of recognition
The constitutional recognition of indigenous Australians requires meaningful consultation

It’s all about the process. The politicians, their advisers and their spin doctors have alighted on the importance of process. The substantive policies and politics of a complex public issue are now subservient to process.

It is perhaps unsurprising. The political and policy cacophony in social and traditional media is too much for the mob to absorb and understand. There is simply too much happening. Even the political and media players outside of an immediate issue can’t keep up with the details.

Policy was always subservient to politics. But now even policy and politics are subservient to the perception of process. If the punters can’t make sense of the substance, they will at least be able to discern that the political classes have undertaken a reasonable process. In these uncertain times, as one pollster recently told me, the public need to be able to cling on to process – they need the mirage of order in an increasingly uncertain world. This will deliver something reasonable.

Perceived process has always been important. Set-piece photo opportunities, choreographed handshaking, perfectly executed meetings, commissioning and receiving official reports, and so on. The semblance of public conversation, democracy and debate: the reality of pre-prepared statements and pre-determined outcomes has long been part of politics. But process today is not like process yesterday. We are now in the era of the reification of process. Process entirely disconnected from the real policy and political substance. Indeed, the process itself has become the substance.

How else can you explain the events at Kirribilli House in Sydney on 6 July when Prime Minister Tony Abbott and Opposition Leader Bill Shorten met with 40 indigenous people to discuss a way forward on the constitutional recognition of indigenous Australians?

I received an invitation six weeks before the event. The invitation did not disclose who else would be attending. In the intervening weeks, people all over the country were playing the guessing game, calling around to try to obtain lists of invitees. Who was attending? Who was not attending? Even the ALP, which was putting forward names, did not know the list until the night before. It was a big blind date.

The purpose was a bit obtuse. The invitation said the meeting was to “consider the best approach to the proposed referendum on indigenous recognition”, that we would discuss “key principles for constitutional change” and “a process for taking this forward”. It sounded sensible enough. Without doubt, a national process needed to be laid out – especially a process to enable indigenous Australians to come to a position on constitutional recognition.

The meeting was facilitated impeccably. The prime minister gave everyone an opportunity to have their say – not a say about anything in particular, but a full opportunity to say their piece, whatever it was. By the time we got through 40 people going around a table (a few did not speak), there was little time to discuss anything else.

I raised two proposals.

The first was that any bipartisan commitment to constitutional recognition should be enshrined in legislation prior to an election. What good is a promise by the present prime minister and the present Opposition leader to hold a referendum in the next term of parliament? One of them will likely not be around after the 2016 federal election. The make-up of each of their party rooms and front benches will change. Without any kind of lock-in, the promise to hold a referendum in the next term is meaningless.

There are three ways to make the bipartisan promise real. The first is to hold the referendum before the election (which because of time is not a real prospect). The second is to hold it at the election. And the third is to legislate a bipartisan consensus using trigger legislation, which is intended by all parties to survive the election, and put the issue to a referendum in the next term of parliament. Section 128 of the Constitution provides that a referendum must be held “not less than two nor more than six months after” the legislation proposing the change has passed through parliament. The first-stage legislation would set out the referendum question. Subsequent legislation would pull the trigger for putting it to a referendum.

The fact is that all bets may well be off after the election. If Labor forms government, it is hard to imagine the Liberals allowing Labor to carry a successful referendum. Opposition mentality will likely kick in and the temptation to tear down or endlessly cavil with any Labor-led attempts at constitutional change would, I think it realistic to fear, prove too great. Conversely, a Labor government may be tempted to force propositions that conservatives cannot support, leading to yet another defeat of a Labor-led referendum. Shorten reminded everyone of the party’s sad history of failed propositions.

In the same vein, if the prime minister changes or the Opposition leader is replaced, their replacements may not be as committed to their bipartisanship. If, as I believe, the bipartisanship between Abbott and Shorten is genuine, it would therefore be prudent to capture its terms before the election.

My preference would be to achieve solid commitment on an agreed model for constitutional recognition and to then enact the legislation to settle the referendum question before the election, with a view to holding the referendum at the election or sometime early in the next parliament. The best date would be in May 2017, the 50th anniversary of the 1967 referendum.

The second proposal I raised – as the voices of the sovereignty protestors echoed outside – is that consideration should be given to an indigenous plebiscite on the referendum question. Imagine if a referendum proposition passed and we found out later the majority of indigenous Australians didn’t support it?

I also argued, along with most others in the room, for a specific process to allow indigenous people to understand and express their views on models for constitutional change. This would help elucidate an indigenous consensus position, enabling more productive discussion with the broader community.

By morning tea it wasn’t clear how it was all going to come together. A large group photograph commemorating the event was taken, and was amazingly ready for autographs at meeting’s end. I duly signed the beaming commemoration.

I drew the line, however, when one of my colleagues asked me to sign his copy of the final report by the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander People, which had been tabled two weeks before. He asked me why I would not add my name to the signatures already festooning his copy. I said, “Because I don’t agree with it.”

The preordained conclusion to this process was revealed in the last five minutes of the meeting when the prime minister and the Opposition leader summed up. The key outcomes from the summit included two things that had not been discussed in the previous three hours: the idea of broad community conferences (with no mention of the need for indigenous conferences, or an indigenous-specific process outlined by a number of indigenous speakers, including myself), and the idea of a Referendum Council. Most of the 40 indigenous leaders had no idea what the Referendum Council was, how it would be constituted and what its mandate would be. I certainly didn’t. It became obvious from what Shorten said that he and the prime minister had agreed the way forward at some point earlier outside of the meeting.

Why didn’t Abbott and Shorten just tell the meeting what they had decided and seek views and reactions to their agreement?

The whole thing was neatly stage-managed by Recognise, the campaign organisation promoting constitutional recognition, and the Prime Minister’s Office. Forty indigenous leaders were brought to Kirribilli House to legitimise a pre-determined outcome.

I later discovered a Referendum Council was something recommended in September 2014, through yet another process. A Review Panel comprising Recognise’s joint campaign director Tanya Hosch, former politician John Anderson and bureaucrat Richard Eccles recommended a Referendum Council, described as a group of “apolitical” “national guardians”, to be “trusted to deliver the best model that can be supported by all sides in the interests of country”.

The Referendum Council raises serious issues that need to be understood before it is embarked upon. There was no opportunity to do so at the Kirribilli meeting, because it was not raised until the end.

It appears the aim of those running the official recognition campaign is to subject the determination of a model to the rigidity of a perceived process. When I published my Quarterly Essay ‘A Rightful Place’ last September, floating different ideas, I was accused of not following “the process”. The Joint Select Committee’s chair, indigenous Liberal MP Ken Wyatt, told me to submit to the committee “like everybody else”. We subsequently did. In fact, Cape York Institute made three submissions to the Joint Select Committee.

When I spoke at a launch relating to Julian Leeser and Damien Freeman’s concept of a declaration of recognition, Liberal Party pollster Mark Textor got on radio to disparage this initiative as being outside the process.

Without doubt, the clearest example of the triumph of process over policy and politics has been the behaviour of the Joint Select Committee. On 25 June Wyatt’s committee tabled its final report, which laid out three options for constitutional change. Each included a variation of a racial non-discrimination clause, the most contentious recommendation of the 2011 Expert Panel led by Patrick Dodson and Mark Leibler.

Wyatt’s prime minister and members of his side of politics, both within and without the parliament, had already indicated their opposition to the non-discrimination clause as a “one-clause Bill of Rights”. So why did Wyatt’s committee recommend reforms that Wyatt knew had no chance of bipartisan support?

Walking into the Kirribilli meeting on 6 July, Wyatt indicated to reporters that he didn’t see a racial non-discrimination clause getting into the Constitution. What?

Wyatt did not tell the meeting his view on this crucial question, and the speeches advocating a non-discrimination clause were made oblivious to Wyatt’s abandonment.

A few days after the Kirribilli meeting, Wyatt was in the Australian admitting that a non-discrimination clause is unlikely to succeed because it is opposed in his own party. Tabled with hugs and congratulations, the Joint Select Committee’s report was dead within three weeks.

The scope of the options on the table had not been narrowed at the Kirribilli meeting. And yet by the end of the week, the ink not yet dried on the committee’s report, already it was being dismissed as unviable by its primary author.

The reaction? Nothing. The inexorable caravan of process moved on as though nothing happened. Never mind a parliamentary committee recommends something one week and its chairman rejects it three weeks later. Clearly Wyatt felt it was more important to have a unanimous report than an honest one. The perception of proper process was paramount once again.

Of course there needs to be process. But there must be public engagement and debate. We either win on the strength of our ideas and arguments, with integrity, truth and rigorous debate, or we do not win at all. From here, either the recognition process is managed to a destination worked out by the pollsters and official reconciliationistas, or they take a back seat until the policy and political dialogue is properly had.

Mark Textor and Recognise’s joint campaign director Tim Gartrell are brilliant pollsters and proven campaigners, and they may well be committed to the cause of recognition, but they cannot be permitted to dictate a reified process that leads to a pre-determined outcome.

Noel Pearson

Noel Pearson is co-chair of Good to Great Schools Australia and policy adviser to Cape York Partnership.

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