Recognition must be at the heart of constitutional reform
Early in the new year, Australia embraced ’90s nostalgia. A bloke called Turnbull was talking about a vote on the republic issue, and, alongside retweets of the retro rugby league Winfield Cup account, ’90s platitudes such as “The system is broken. Let’s fix it” appeared in my Twitter timeline. And with constitutional recognition of Aboriginal and Torres Strait Islander people unresolved and the ink barely dry on the government’s rejection of the Uluru reforms, republicans were straight out of the gates declaring an Australian republic was the next referendum. Talk about back to the future. For those not au fait with the relationship between the republican movement and First Peoples in 1999, the two movements were very separate. The least glamorous part of Australian republicanism has always been the question of Aboriginal sovereignty. And it is yet to be reconciled.
“Nostalgia” is derived from the Greek word nóstos, or homecoming. Ever since I studied Homer’s epic The Odyssey at the University of Queensland in the republican ’90s, the concept of nóstos and the unfinished business of the Australian state with the First Nations has often occupied my mind. For Indigenous constitutional recognition has been an epic journey and there is no homecoming in sight. The recognition project has had many iterations since John Howard’s preamble to the Constitution in 1999: Julia Gillard’s expert panel in 2011, John Anderson’s recognition review (2014), Ken Wyatt and Nova Peris’s joint select parliamentary committee (2012–15), and Turnbull’s Referendum Council (2015–17). Four state-sanctioned, taxpayer-funded mechanisms in six years. And with the announcement of another joint select parliamentary committee this year, we will have had five processes in seven years. We are exhausted. We would like to come home. The Uluru Statement from the Heart is the way home.
Make no mistake, I was a kid Republican: in 1986, at St Joseph’s Tobruk Memorial School in Beenleigh, a debate on whether or not the Queen should be our head of state had me hooked. As a child of the underclass, a granddaughter of a Wollongong wharfie, and the daughter of a mother who had religiously read Henry Lawson to us, I have the Australian republican tradition coursing through my veins. It became an adolescent passion of mine. Years later, I was a United Nations Fellow at the Office of the High Commissioner for Human Rights in Geneva when the republic referendum was held. I voted at the Australian Mission to the United Nations and posed out the front with my mates, fellow Aussie interns Lizzie and Evie. I cried when the vote was lost and I was angry. But I have not maintained the rage.
Not long after the referendum vote I spoke to many elders and leaders and I discovered that I was probably the only Aboriginal person who voted “Yes”. ATSIC leaders visiting Geneva would say that an Australian republic could not come before addressing unfinished business. Others said becoming a republic would cede our sovereignty. Aboriginal leaders were simply appalled that Howard, knowing the key cultural authority, the land councils, and ATSIC had rejected the single line of Indigenous recognition in the proposed new preamble, had proceeded with it regardless. It was the 1999 referendum that made me interested in this question: can you become a republic before you address unfinished business? It is in part why I became a constitutional lawyer.
Many people in the late ’90s and early ’00s would say to me, “Get a republic up first and deal with Indigenous issues later.” But as Australian historian Mark McKenna skilfully expounded in his 2004 book This Country: A Reconciled Republic?, the matter isn’t that simple: “It is neither rational nor just … to replace the sovereignty of the crown without addressing the constitutional position of Aboriginal Australians.” The Crown, the monarch, a republic and Aboriginal sovereignty were all issues raised by dialogue participants. The republic is an Aboriginal issue.
McKenna’s prescient view came to the fore last year when my kid hero Malcolm Turnbull, the face of ’90s republicanism, the man who inspired me to pursue constitutional law, cold-heartedly rejected the outcome of a deliberative process conducted in the great republican tradition. The culmination of that civic engagement, an Aboriginal and Torres Strait Islander conceived and designed solution to our powerlessness, a constitutionally enshrined Voice to Parliament, was rejected on the basis of a most insipid contrivance: that it would be seen as a third chamber of parliament. Not long after the rejection of the Voice, Turnbull seemingly endorsed the idea of a republic referendum or at least a postal vote. The enthusiasm of Turnbull for this structural reform and not Uluru structural reform stung.
Over the years, other things have surpassed my adolescent interest in an Australian republic. The issues facing my people – disadvantage, the limitations of the right to self-determination for women, child removals, the challenges of liberal democratic governance – are more pressing. Whether the head of state is a foreigner makes no difference to communities decimated by the Commonwealth’s appalling policy settings or to the families of our young people languishing in youth detention or child protection.
I am unmoved by tedious snark about royal weddings. Tales of Camilla seeking a long-haul flight on taxpayer coin elicit no outrage given the amount of taxpayer money wasted on the true “Indigenous industry”: Commonwealth public servants who lord it over vulnerable Aboriginal communities.
Australian republicans like to talk a lot about values: merit, the fair go and active citizenship. So, let me tell you a very Australian story. The first part of it comes from A Dumping Ground: A History of the Cherbourg Settlement by Queensland historian Thom Blake:
In the early months of 1901, as white Australians were undergoing their rite of passage into nationhood, another group of Australians were also participating in a rite of passage – but of a quite different kind. In the Burnett district of south-east Queensland, remnants of the Wakka Wakka tribe were being rounded up and dumped on a reserve on the banks of Barambah Creek. From camps on the fringes of towns and station properties, they had been forced onto an Aboriginal settlement established ostensibly for their care and protection. For the Wakka Wakka, their “rite of passage” was not into nationhood or independence but into institutionalisation and domination. The two rituals were diametrically opposed.
The brutality of the Australian state towards Aboriginal people is a part of those values that imbue the constitutional system to this day. I’m a republican who, as a member of the Referendum Council, designed and led constitutional dialogues that encouraged the civic deliberation of Aboriginal and Torres Strait Islander peoples on constitutional recognition. It was the first such process ever undertaken in Australian history. (First Nations were excluded entirely from the constitutional convention debates of the 1890s.) Yet the tenets of this very republican process were ruthlessly rejected by the Australian government.
The reasoning should be troubling for all republicans. Turnbull rejected Uluru for all the reasons he endorses the republic. The preference of the political elite is for minimalism. It is driven by political timidity. Australia’s very difficult referendum record means that reformists now shrink to match the political conservatism of the Australian state. It is true only eight out of 44 proposed amendments have been successful. It is true that for the most part they had bipartisan support. But it has been 41 years since a referendum last succeeded; Malcolm Fraser was prime minister, “Don’t Cry For Me Argentina” was number one in Australia, and St George and Parramatta drew in the rugby league grand final. Forty years is a long time in a nation’s development. There has been no referendum held in the era of social media. The old adage that, by and large, Australians trust and defer to politicians’ judgement on referendum questions may not hold up to scrutiny.
Although political elites say no model of republicanism has been endorsed, the truth is that the campaign has parallels with Indigenous recognition. The absence of a model means that the silence on substance is filled with a campaign touting what deceptively looks like innocuous clichés and vague yet harmless contours of the reform. But with the passage of time, in the absence of the proper input of the republican citizen, the contours of that campaign become too hard to disrupt. The noise from those who occupy that space – and that is almost always political elites – will be overwhelming well before citizens are truly engaged. Uluru showed how out of touch the political elite were with the Indigenous demos.
It can happen quickly with campaigns. I read one republican message that Australia is one of the only nations in the world with a constitution that actively discriminates against its own citizens. The Recognise campaign used a similar message. I thought for a moment they were talking about Aboriginal people and the race power. But they were referring to the head of state. This jars for a people whose only opportunity for economic development through native title was diminished by a Commonwealth head of power that permitted adverse discrimination on the grounds of race. These were the big civic questions that occupied the minds of Aboriginal and Torres Strait Islander dialogue participants. Actual legal problems affecting people’s wellbeing and culture.
It makes me question whether the Australia on the other side of a successful referendum for a republic is the same as the Australia on this side. Lipstick on a pig. And some signs are worrying. I worry when I hear people suggest, as they did in the ’90s, that First Nations input into a republic could be an Aboriginal word for “president” or dots on a new flag. I worry when I hear First Nations deployed as a rhetorical device to aid this reform that has no clearly enunciated benefit for our struggle. There is also nothing more tiresome than the invoking of the “oldest living cultures” as an accessory to an unrelated reform. I worry when I hear people use ’90s messaging about Aboriginal proclivity for symbolism or Aboriginal recognition in a preamble. This narrative is antiquated. The First Nations constitutional dialogues supervised by the Referendum Council rejected a statement of recognition or anything like it in a preamble. Rejected. If Uluru had zero impact on Australian republicans, how can we rely on the reassurance of the political elite who say, “Let’s get a republic up and we will deal with your issues later.” It ain’t gonna happen. You aren’t compelled to listen to us now; you won’t be compelled to listen after. This is the torment of our powerlessness.
In 2003, Gatjil Djerrkura, a Wangurri man of the Yolngu people and a former ATSIC chairman, wrote:
It is time for the Australian people to begin a new debate, one in which the republic and reconciliation are not seen as separate movements, but movements which are closely related.
Despite my efforts as chairman of ATSIC, and the efforts of many other indigenous leaders, many members of the republican movement preferred to “go it alone”. They saw reconciliation as a different issue from the republic, insisting that a republic was little more than the instalment of a new head of state. But, to my mind, this approach failed to answer one burning question – what kind of republic do we want, a reconciled republic or a republic that repeats the injustices, errors and omissions of the constitutional monarchy?
This must be the driving question of a republic reform. While Gatjil goes on to extol the virtues of symbolism and a preamble, 15 years later the Aboriginal appetite for symbolism is very low. In the intervening period ATSIC was abolished, the NT Intervention occurred, communities have been torn apart by the Indigenous Advancement Strategy, and the ongoing cost-shifting of the Commonwealth post 1967 continues unabated, while a gauchely titled “refresh” of Closing the Gap heralds a new era of buck-passing on responsibility for Indigenous affairs. Any illusions that in 2018 we will settle for a statement of recognition in a republican constitution in lieu of structural reform should be immediately disavowed.
As a republican I’m disinclined to support a “republicanism” that shrinks itself. It represents an old Australia. Too scared to dream big. Too scared to sell the big picture to the people. Being afraid of the constitutional amendment process in section 128 is to be scared of the demos. That’s not the kind of Australia I want to live in. And we should not be enshrining that timidity in the Constitution. For Aboriginal and Torres Strait Islander peoples, the stakes are high. We run the very real risk of a republic that renders the First Peoples invisible in the same way the constitutional monarchy did. And when we object they will blithely say, “That was under the old system, this is a new Australia.” And for many mob, who continue to endure humiliating policies imbued with Australian values from the protection era, punitive, controlling, paternalistic, the morning after a successful referendum nothing will change.
Without correcting the course, there is no homecoming yet for we who are exiled from our own country. There is an opportunity here for the republican movement, though. Don’t go it alone. At Uluru we invited you to walk with us in a movement of the Australian people for a better future.
Megan Davis is a Cobble Cobble woman from Queensland, a pro vice chancellor and professor of law at UNSW, and a member of the Referendum Council.
Early in the new year, Australia embraced ’90s nostalgia. A bloke called Turnbull was talking about a vote on the republic issue, and, alongside retweets of the retro rugby league Winfield Cup account, ’90s platitudes such as “The system is broken. Let’s fix it” appeared in my Twitter timeline. And with constitutional recognition of Aboriginal and Torres Strait Islander people unresolved and the ink barely dry on the government’s rejection of the Uluru reforms, republicans were straight out of the gates declaring an Australian republic was the next referendum. Talk about back to the future. For those not au fait with the relationship between the republican movement and First Peoples in 1999, the two movements were very separate. The least glamorous part of Australian republicanism has always been the question of Aboriginal sovereignty. And it is yet to be reconciled....