Noel Pearson s indigenous recognition plan profound and practical

Transcription

1 Page 1 of 5 You are reading the full text of a subscriber-only online news item, provided by the publisher to Isentia for your exclusive use as part of your Isentia service News Corp Australia Copyright Agency. Noel Pearson s indigenous recognition plan profound and practical by Greg Craven THE AUSTRALIAN, 23 May :00AM Australia is a land of paradox. Egg-laying mammals with beaks and fur. Droughts and flooding rains. People who live in Sydney and claim to be intellectuals.our eccentricity extends to our constitutional arrangements. For sheer quirkiness, it is hard to beat a deeply egalitarian Pacific continent that insists on having as its head of state the monarch of another country. But there are even more profound constitutional paradoxes. One of the most important is that if you want to achieve real constitutional change, call a constitutional conservative. The most obvious example is the 1967 referendum improving the position of aboriginal people in the Constitution. It was overwhelmingly carried at the instigation of that dangerous radical, Sir Robert Menzies. Yet this is merely one instance of a consistent trend in Australian history. Our greatest work of constitutional imagination the creation of the Australian nation was the work of liberal conservatives like Edmund Barton, Alfred Deakin and Samuel Griffith. Upon reflection, this conservative talent for constitutional reform is not so surprising. Conservatives bring two invaluable assets to the negotiating table. First, conservatives logically represent the forces most likely to oppose constitutional change. If they already are on side, things are going to be much easier. Second, and at a much deeper level, conservatives psychologically are the worker bees of constitutional improvement. Their job is not to oppose for opposition s sake, but to identify dangerous proposals, improve defective ones and thoroughly road test good ideas. In short, once constitutional conservatives think something is safe and useful, it probably is. All of this points to some fundamental realities around current proposals for indigenous constitutional recognition. On the one hand, without conservative support, any proposal will fail. On the other, the conservative omens are highly propitious. We have a conservative Prime Minister committed to the cause. We have a bevy of conservative thinkers behind him. We have indigenous leaders in serious intellectual dialogue with conservative constitutionalists. So the time and the chances

2 Page 2 of 5 have never been better. But for conservatives to make yet another decisive contribution to our constitutional equation, they must face a profound moral and intellectual challenge. Conservatives understand that it is their particular duty to test and query. They should expose folly and danger mercilessly. Bad proposals should be eliminated. But conservatives have to know what success looks like: when our concerns have been heard, our imperatives adopted and our fears allayed. The truth is, in Noel Pearson s proposal for indigenous recognition minimal constitutional amendment, a non-constitutional declaration of recognition and a standing body of advice we have reached this point of conservative confidence. A starting point is to accept that sensible recognition of indigenous people somewhere in our wider constitutional arrangements is by no means the radical step sometimes portrayed. Conservatives view the Constitution with an almost sacred reverence as if it had been delivered from the mountain top. Sir Henry Parkes even looks like Moses if you squint the right way. The Parkes-Barton-Deakin-Griffith Constitution contains fundamental elements that conservatives should protect at all costs: in particular the federal system and the balance between the parliament and the judiciary. Some eccentrics would even want to protect the crown. But indigenous recognition does not touch any of these key aspects. The fundamental rule of constitutional design is that constitutions should deal with fundamental things. Ours does: representative democracy, rule of law, judicial independence and so forth. The Constitution as originally agreed did contain glancing, and broadly negative references, to indigenous people. But it was a creature of its times, and the truth is the founding fathers did not see indigenous people as particularly important. They regarded them as a fading race. Today, few Australians would say that the immemorial connection between indigenous people and the Australian land is not a fundamental aspect both of our history and our current reality. Nor would they deny aboriginal people have suffered grievous wrongs throughout our history. The crown is in the Constitution. The courts are in the Constitution. Abstract principles like democracy, federalism and an uncompromised judiciary flow through the Constitution. At the other end of the scale, such vast subjects as weights and measures and meteorological observations are in the Constitution. Is recognition of indigenous people really out of place in such company? It is hardly as if we would be on our own. Numerous other countries, including old friends such as Canada and New Zealand, include their indigenous people in their constitutional arrangements. Ottawa and Wellington are yet to fall. Besides, we face the unfortunate reality that our Constitution contains two provisions seriously problematic on issues of race: section 25, allowing electoral disqualification of members of any particular race, and section 51 (26), allowing the national parliament to make laws on the basis of race. Both jar with profoundly conservative themes of the Constitution such as parliamentary democracy and dispassionate rule of law. They need to be dumped and replaced. But if we do this without at the same time addressing the vast begging question of the position of our indigenous people, the silence will ring in our ears indefinitely. Of course, conservatives are right to say

3 Page 3 of 5 that botched reform is worse than no reform, and indigenous recognition conceivably could be horribly botched. The greatest danger would be inserting vague, manipulable language into the Constitution, especially in the form of infinitely extendable rights like equality. An adventurous High Court would be able to play merry hell with such an opportunity, and the fidelity of the court to the Constitution over the years does not promote conservative confidence. But referendum realpolitik also counsels grimly against such constitutional adventurism. The Constitution can only be amended by referendum, and put simply, referendums lose. Big bold referendums are slaughtered. This is where the Pearson proposal is genuinely brilliant. It combines minimal constitutional exposure with maximum moral impact. It is, after all, the latter that we really are aiming at. What we want out of this exercise is an even better country, not an exciting redraft of our basic law. The proposal has three main parts. First, as economically and tersely as possible, fix the race provisions of the Constitution, which are at best obsolete and embarrassing and at worst potentially dangerous. A fleabite of a referendum. Second, solemnly enact a Declaration of Recognition, decorously and clearly expressing our recognition of indigenous people. But in an act or acts of parliament, not in the Constitution. Third, in a simple insertion into the Constitution, provide for a body of indigenous scrutiny to advise parliament and government on laws affecting indigenous people. Conservatives rightly will give these proposals the same penetrating stare they turn upon any suggested reform. But that stare will reveal some profoundly reassuring truths. Fundamentally, there is no way a Declaration of Recognition could unleash the constitutional genies so feared by conservatives. This language, for all its moral potency, would not be in the Constitution. It would not even be in the preamble. It provides simply no base for judicial activism. The other basic feature of Pearson s model is that it works with the Constitution, not against it. Take the body of indigenous scrutiny. It can advise, but not dictate to government, inform but not instruct parliament. Our democracy is enhanced not undermined. But conservatives understand and rely on moral force, and this is where the declaration punches: in the arena of public debate and ideas. It would not dictate answers, but would be profoundly effective in posing questions to be answered through our normal, democratic, constitution process. So those of us who are conservative now face one of our regular hours of truth. This is a proposal that has listened to our concerns. It has been formulated with our values in dialogue with the imperative of recognition itself. What part of the word Yes do we not understand? Or are we just blockers for blocking s sake? Conservatives are right to ponder the advisability of having provisions touching upon race in the Constitution, as inevitably would be the case, for example, with an indigenous body of scrutiny. But we have to be honest with ourselves. We are not starting with a clean slate: the Constitution always has had race-based portions, whose legacy we now have to face. So if we are to amend the Constitution to remove the races power, we have to put some power to make laws about Aboriginal and Torres Strait Islander peoples in its place. Without such a power, we will never be able to amend the Native Title Act and other laws made under the

4 Page 4 of 5 former races power. We need to acknowledge that the Pearson model is profoundly modest in its constitutional dealings. There are no references to sovereignty or sweeping guarantees of equality and far-flung rights. This is no constitutional ogre. Conservatives also are entitled to demand what is so special about indigenous people that they should be recognised. And they are entitled to a genuine, uncompromising answer. The argument that we are all indigenous because we were born here does not wash, even semantically. Sparrows are born every minute in Australia, but no-one seriously argues they are indigenous wildlife. The truth is that all people have a reality that extends well before the moment of their physical birth. As an Australian of Irish descent, part of my soul always will dwell amid the stony walls of county Galway. It does not compromise my Australian identity, nor yours. The same is true of an old friend, profoundly Australian, who nevertheless insists on owning improbable mutts deriving from the same ancestral country as his own. And this is the point. Indigenous identity, indigeneity, is not superior to the identity of other Australians, nor does it in any way threaten that national identity. It simply is the case that an identity based upon millennia of profound connection with this country, physical and spiritual, is sufficiently special to be worthy of safe, certain recognition. Indeed, if we get this right, indigenous recognition will enhance Australian identity. If we can lay this unanswered but insistent query to rest in truth and love, all Australians will to some extent share in the indigenous history of this land, precisely because we have embraced it and its people, and they have embraced us. In considering this mighty opportunity, whether hopefully or sceptically, conservatives should not be distracted by mischaracterisations. This is not a proposal for a treaty. It is not based on the idea of an agreement between two sovereign nations, one indigenous, the other not. In fact, it is the exact opposite: the one Australian people uniting to determine the answer to a question they have chosen to ask. And in so doing, drawing the nation together and making it stronger. Nor is anyone suggesting the creation of some indigenous superbody with a power to veto and overrule. The proposed body would advise, suggest and comment. Its views would be debatable, disputable and disposable. Nothing radical here, nothing frightening. Just Australian democracy working in the usual way, but with a particular, modest constitutional enhancement. Australian conservatism has an enviable constitutional reputation. It overcame its own scepticism to create our very federation. It has maintained that wonderful, democratic reality against every attack. It has resisted every dangerous, speculative innovation from a bill of rights to the abolition of the states. Over the past few years, sometimes unconsciously, it has acted as the critical friend that has refined and tested proposals for indigenous recognition until we now have an idea that is practical enough to work and profound enough to be worth doing. Together, our ancient tradition and our oldest political philosophy are presented with great opportunity. Greg Craven is Vice Chancellor of the Australian Catholic University.

5 Page 5 of 5