October 2019


No time for the meek

By Megan Davis
Possession Island (Abstraction)

‘Possession Island (Abstraction)’ [detail] © The Estate of Gordon Bennett

Keeping faith with the Uluru reforms

It has been two years since the Referendum Council endorsed the Uluru Statement from the Heart, an open invitation from Aboriginal and Torres Strait Islander peoples to the Australian people to walk with us in a movement of the Australian people for a better future. Many Australians have taken up the offer in that time, from civil society groups, professional societies, local community groups, not-for-profits, corporations, universities, schools and unions, but, as expected, not all of our political representatives. The decision to issue the Uluru statement to the Australian people was the correct one. Those who have queried the strategy are those who place great faith in conventional approaches to politics. They are mostly pundits. It works for them. And they have no skin in the game.

Law reform is not for the meek. Theorising is for the meek. Change requires breaking bread across the political divide. With our theoretically unassailable institutions of liberal democratic governance straining as the public loses faith in the capacity of politicians to deliver change, it is not a divide that is easy to bridge. To make this change, we will need the Australian people to understand who we are as Aboriginal and Torres Strait Islander peoples, and why a constitutionally entrenched “voice to parliament” is desirable, because half of our parliamentary representatives do not.

Journalist Laura Tingle made an interesting point about strategy on Radio National’s Late Night Live, after Aboriginal and Torres Strait Islander leaders met in Cairns on the second anniversary of the Uluru statement to renew our commitment to a constitutional voice. Rather than leaving it to politicians, she noted, “This group is actually saying, ‘Look, let us have a go at it,’ and trying to once again find a proposal that will work for politics and for the country.” She added that the renewed campaign, like the same-sex marriage push, had come from outside politics, and was supported from outside politics before it was supported inside politics. “So it’s going to be interesting to see what happens this time and whether there’s enough capacity within the government to take up the issue. I’m sort of a bit doubtful at this point.”

We are not as doubtful. We cannot afford to be. We do not have the luxury of walking away and giving up on structural reform. We have garnered enormous support, including from inside politics – just not enough support, yet. The logic of the reform, for the nation’s future, is irrepressible. Substantive, concrete reform is the only thing the nation has not tried. Reconciliation action plans won’t do it, a symbolic statement of recognition won’t do it, the Closing the Gap report demonstrably cannot do it, a legislated “voice” won’t achieve it, state-based treaties can’t do it, the Productivity Commission can’t do it. The conventional parliamentary system and its ancillary mechanisms have failed us. Yet we require that very system to endorse this change. We have no choice but to adopt strategies that engage the public.

Despite what Tingle said about Indigenous proposals for reform being generated and supported outside of politics before they are supported inside politics, the Uluru reforms originate from conventional law reform processes populated by Indigenous and non-­Indigenous Australians from across the political spectrum over almost nine years. Every process that led to the current proposals was developed and endorsed by state-backed and taxpayer-funded processes. The government’s proposed voice co-design process, if commenced this year, would be the sixth public process in eight years and produce the eighth report in nine years, all on the taxpayer dime. The initial proposal for “recognition” came from the unimplemented Mabo settlement – the social justice package – and the 1999 republic referendum was the trigger for the multi-party commitment to recognition in the party platforms of the 2010 federal election. It was the hung parliament that forced Julia Gillard to set up a formal state-sanctioned process.

During each process, we urged Aboriginal and Torres Strait Islander peoples to have trust in the public institutions of the Australian state to change, because they are built to change, despite overwhelming evidence to the contrary. We cannot entertain the tired refrain (and thinly veiled threat) that if we don’t push for recognition now, it will be left for future generations to pursue it. Mark my words, this time will not come again. Uluru is an opportunity for the nation now, and the risk of doing nothing is too overwhelming to contemplate.

In a recent address to the NSW Bar Association, UNSW Sydney law professor Rosalind Dixon talked about the downstream risk of doing nothing. In agreeing, as our most senior jurists Murray Gleeson and Robert French have, that the dialogues landed on a reform model that was prudent and consistent with Australia’s constitutional traditions, Dixon speculated the following: “The risk in the status quo is [that] a whole generation of Aboriginal and Torres Strait Islander peoples will entirely lose faith in the process of legal and constitutional reform. I say that as someone who has the great privilege of teaching some people who are the leaders of that generation and I can say to you, from what they have said to me, there is a real sense that this is the last chance … for a generation to fix this.” The small risk of “downstream uncertainty” that one runs when reforming things “has to be weighed against the absolutely certain risk of disillusioning and disappointing a whole generation of leaders and fellow members of our community”.

This is also my great fear. For it is young people who are central to the Uluru statement:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

Galarrwuy Yunupingu put the challenge simply on these pages in 2016: “What Aboriginal people ask is that the modern world now makes the sacrifices necessary to give us a real future. To relax its grip on us. To let us breathe, to let us be free of the determined control exerted on us to make us like you … What a gift this is that we can give you, if you choose to accept us in a meaningful way.”

The problem is not the veracity of the support of the Australian people. It is not even the model of the voice. As Murray Gleeson, former chief justice of the High Court, stated matter-of-factly in a recent speech, parliament will have the final say.

“What is proposed is a voice to parliament, not a voice in parliament,” he said. “The recommendation of the Referendum Council deliberately left it to the parliament to establish the contemplated representative body … The structure, composition and functions of the proposed representative body would be determined, and susceptible to change, by legislation.” What would appear in the Constitution, in the event of a successful referendum, would simply be “the minimum requirements necessary to guarantee its continued existence and its essential characteristics”.

The problem remains those few, powerful elite who fail to see what the rest of Australia can see. They do not see the Uluru statement as a magnanimous gesture, a message of peace or a coming together after a struggle. They do not see it is an utterly pragmatic compromise; a compromise on the last recognition proposal overwhelmingly supported by the public but rejected by the political parties, a non-discrimination clause. Nor do they see it is a sensible and pragmatic solution. As Gleeson said of the voice, “It would give Indigenous people a constitutionally entrenched, but legislatively controlled, capacity to have an input into the making of laws about Indigenous people or Indigenous affairs.”

And so here we still stand, after eight years.

A month ago, I travelled to Montgomery, Alabama, to visit Bryan Stevenson’s Equal Justice Initiative and view the remarkable monuments it has built to educate Americans on the terrible consequences of racial inequity – The Legacy Museum: From Enslavement to Mass Incarceration, and the lynching monument, the National Memorial for Peace and Justice. We visited a few days after the African-American Nobel-winning author Toni Morrison had died. And in the searing Montgomery heat, not far from the main street where the slaves who alighted on the banks of the Alabama River were marched up the main street called “Commerce” to be sold or warehoused, we strolled through the national memorial, ducking and weaving between and beneath the swinging, rusted boxes of red metal that signified the verified lynchings of each county.

Departing the monument, we saw a quote from Morrison herself, exposed, unexpectedly, on a granite wall. It was from Beloved, when Baby Suggs lectures a group of slaves in the woods: And O my people, out yonder, hear me, they do not love your neck unnoosed and straight.

The quote is jarring. What a striking insight. It made me reflect on the past two years and a passing comment of my colleague Noel Pearson. We have Gleeson CJ on board, French CJ on board, constitutional lawyers from across the political divide, we have doctors and lawyers, unions, teachers, physiotherapists, Telstra workers, miners, BHP, Rio Tinto, the NRL and Qantas, and 22 national and global law firms, and we have a robust dialogue process that underpins a proposal for change that legal consensus suggests is workable. But it is still not enough. What if they do not want change? What if they do not seek to empower us? What does it take? When is enough, enough?

I was drawn back to the work of an Australian writer, John Shaw Neilson. His poem, “The Orange Tree”, my mum used to read to us as children. A young girl sees an orange tree and tries to describe it to an adult. The young girl stood beside me. I saw not what her young eyes could see: A light, she said, not of the sky, lives somewhere in the Orange Tree. The rational adult questions the young girl; to him it is a tree. The man attempts to understand but through his own lens. He is clearly unable to see what she can see. The young girl is frustrated at his inability to understand what she is describing. Listen! the young girl said. For all your hapless talk you fail to see, there is a light, a step, a call, this evening on the Orange Tree. But eventually the young girl grows weary, frustrated and gives up – as I hope our nation does not – waiting…

Silence! the young girl said. Oh, why,
Why will you talk to weary me?
Plague me no longer now, for I
Am listening like the Orange Tree.

We are closing in on a decade of the current national recognition project. The passage of time brings with it fatigue and some melancholy, but the antidote to those momentary lapses of faith is to remember the status quo; it is killing us. On that, all Australians agree. Following Labor’s election defeat we fielded many calls from old people, our mob, saying they could no longer take part in the campaign because they were too despairing. Old or ageing, they feared they would not see change in their lifetime.

Megan Davis

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.

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