Part Fourteen of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
Dr Damien Freeman is a writer, lawyer, and philosopher who is currently a visiting fellow at the PM Glynn Institute, Australian Catholic University. Dr Freeman was educated at Lindfield East Public School and Masada College, St Ives, New South Wales, and subsequently at the University of Sydney (BA, LLB, MA, MPhil) and Magdalene College, Cambridge (MPhil, PhD). He currently divides his time between Sydney, London, and Cambridge.
Mr Julian Leeser, Dr Freeman’s partner in the adventure, is a true-blue Liberal – rather, conservative. His biography confirms that. Julian Martin Leeser, BA (Hons.), LLB from the University of New South Wales, is also a Graduate of the Australian Institute of Company Directors. He spent 2006-2007 as a Visiting Fellow at the Taubman Centre at the John F. Kennedy School of Government at Harvard University.
Mr Leeser won the seat of Berowra for the Liberal Party at the 2016 Australian election, having been endorsed as a candidate in April 2016 to replace former Attorney-General Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs (1996-2003).
He had been the youngest local councillor ever elected in Australia, sitting between 1995 and 1999 on the Council of Woollahra, one of Sydney leafy and most conservative suburbs. He was also an elected delegate to the Constitutional Convention in 1998 as part of the No-Republic ACM team.
In 1999 he worked for Prime Minister John Howard’s No campaign during the republic referendum. In 2000 he became an associate to Justice Ian Callinan of the High Court. The following year he began working as an adviser for the then Minister for Workplace Relations Tony Abbott and in 2004 he joined as special adviser the office of Mr Ruddock, where he remained until 2006, having also worked as a solicitor for the law firm Mallesons Stephen Jaques (now King & Wood Mallesons) between 2002 and 2004. In 2006 Mr Leeser joined the Menzies Research Centre as Executive Director. In 2009 he contributed to a publication titled: Don’t Leave Us with the Bill: The Case Against an Australian Bill of Rights. In July 2012 he became senior executive and Director of Government Policy and Strategy at the Australian Catholic University.
In a pamphlet titled The Australian Declaration of Recognition, Capturing the Nation’s Aspirations by Recognising Indigenous Australians, published in 2014, Freeman and Leeser, who are responsible for an organisation called Uphold & Recognise, introduced a new proposal for such recognition.
A mission-statement by Uphold & Recognise explains: “We are an Organisation of Australians. We are committed both to upholding the Australian Constitution and recognising Indigenous Australians. We believe that it is possible to develop measures that would fairly recognise Australia’s Indigenous peoples; help to enable better outcomes for them; and, at the same time, uphold the integrity of the Australian Constitution.”
Mr Noel Pearson, who had launched the pamphlet, expressed his support for a separate declaration of recognition as a symbolic statement to run alongside any amendments to the Australian Constitution to recognise Indigenous People.
It was a dramatic new proposal. In substance, he was asking for less controversial changes to Australia’s Constitution and for a new “Statement of Recognition” to complement the Constitution.
“Recognition has to have two parts, it’s got to be symbolic as well as substantive and practical and real,” Mr Pearson told NITV News at the launch of the pamphlet.
While Freeman and Leeser were proposing that Australia recognise Australia’s First Peoples in the form of a declaration, which has no legal effects, Pearson said a recognition of Indigenous Australians in the Constitution would inevitably be constrained by the lawyers.
“Now the problem which Freeman and Leeser argue, is when you try and put the poetry in the Constitution, you then get all the lawyers involved and they’re chopping the whole thing down, ‘You can’t use that word’ because it might be interpreted like this and so on, but you end up with a very miserable recognition.”
Against that, Pearson said, a separate declaration, acknowledging the history, heritage, and contribution of Indigenous People, could be Australia’s version of the Gettysburg Address. The Gettysburg Address was delivered by President Abraham Lincoln in 1863 early in the American civil war.
“I’ve come to understand this issue of how a poetic and symbolic recognition outside of the Constitution can, in fact, be much more generous and handsome than the lawyers’ approach of putting two or three sentences in a preamble to the Constitution, because everyone is worrying about the legal meaning of each and every word.”
But, Mr Pearson added, the declaration could only work as part of a package.
“It won’t float by itself. No one will simply accept a poetic declaration sitting outside of the Constitution,” Mr. Pearson said. “It has to work hand in glove with substantive reforms within the constitution as well.”
“I believe this declaration can be the Gettysburg Address for Australia where any Australian child will be able to recite the words,” he said. “It will have moral and spiritual meaning for every young Australian in the future and will just become such an integral part of our national fabric.”
Mr Pearson has been a member of The Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples since its formation in 2010. (Noel Pearson backs separate declaration of recognition for Indigenous Australians, SBS News).
The statements were seen as a return to ‘assimilation’ which would inevitably divide Indigenous People.
“It is time for conservative North Queensland Indigenous leader Noel Pearson to stop promoting assimilation and start listening to his people,” thundered Natalie Cromb, a Kamileroi representative.
“Of course, we received the usual hits from government. The predictable attack on character in order to justify the closure on 150 Indigenous communities in Western Australia (note to Colin Barnett: get some new material; this was done to death and caused the NT intervention and was found to be baseless); the government mandated Murdoch media rag attacks on legitimate Indigenous rights activism.
Those sorts of hits are expected and, although disappointing, can easily be chalked down to the racist agenda of the government.
The hits that hurt are the ones coming from our supposed “leaders”. Now, I am not actually suggesting these people represent anyone, but they have the ear of their friends in government, so they have been dubbed “leaders”, so let’s for a second pretend they are leaders.
[In early April 2015], Warren Mundine advocated for a national database of Aboriginal people. It is obvious Warren serves the overlord prime minister, but come on!” [In May 2017 Mr. Mundine would publish under the imprint of Uphold & Recognise a pamphlet, Practical Recognition from the Mobs’ Perspective, with a foreword written by Tim Wilson, MP – a well-known conservative in the Liberal Party].
Ms Cromb continued: “Something tells me a brother doesn’t know – or is wilfully blind – to the fact that our people have suffered numerous stolen generations – not just one – and the damage of each removal is still being unwound by individual families. Many are still trying to track their heritage. What good would a database be except to further marginalise or provide the government a tool to use against us?
This week, Noel Pearson, in his infinite wisdom and self-proclaimed authority as a leader, threw his support behind a conservative Constitutional recognition movement that – and I cannot overstate this – seeks to subvert the current movements (treaty and recognition) by providing an alternative to recognition that is symbolic and palatable for the white Australia that perceives the Indigenous people as a problem we need to move on from.
Noel Pearson spoke at the launch of a new proposal for recognising Indigenous Australians drafted by Constitutional conservatives Damien Freeman and Julian Leeser and entitled: ‘The Australian Declaration of Recognition: Capturing the Nation’s Aspirations by Recognising Indigenous Australians’.
An apparent offshoot of the arch-conservative Samuel Griffith Society, the group Uphold and Recognise was behind this document. They have a Charter which seeks to uphold the Constitution because, so it says, it:
‘… has served our nation well, providing Australia with an enviable record of stable democratic government.’
The Charter goes further to state that members of their organisation
‘… hold recognition to be a deep moral imperative, some of us regard it as necessary for improving indigenous health and education, some of us believe the issues needs to be resolved and taken off the agenda once and for all and some of us wish to identify the least worst option for addressing the issue.’
The authors suggest that Australians ‘own’ the process and, if so, it will be a truly transformative moment in Australian history. That said, there is no discussion surrounding Indigenous consultation and how engaged Indigenous people ought to be in this process.
The Constitutional conservatives are against the Constitution containing any racial discrimination prohibition on the grounds that it would diminish the power of the Parliament. Put simply, they would like Parliament to retain the right to make laws on behalf of and against particular races. Given that the majority (white) controls parliament they would, of course, want to be able to maintain the power to make laws on behalf of other races – especially Indigenous people – it has been quite profitable for them.
The wording of the declaration proposed by the conservatives would be designed by Australians through a national competition (yes, quite the mockery of something like genocide) voted on by all Australians in a referendum in much the same way as the national flag was selected. The authors suggest a historical and aspirational statement of no more than 300 words and, again, suggests 2017 as a symbolic year in light of the 50 year anniversary since the 1967 referendum.
The proposal speaks of Indigenous Australia’s ‘unique place in history’ but not of the historical facts of theft, dispossession, massacres and systematic policies of destruction implemented against the Indigenous people and, I imagine, if the word “compensation” or “reparation” was uttered we would have wealthy white people fainting at the altar.
This approach has the backing of Pearson who called it a “breakthrough”.
Noel Pearson, a supposed Indigenous leader, considers a Constitution being upheld and a separate document artfully glossing over the truth of our history is a “breakthrough”. Of course, Pearson has long argued that he is an advocate for Indigenous equality and rights, but his latest words tend to indicate he is advocating for assimilation.
Constitutional recognition of Indigenous people is a divisive topic, the Recognise campaign is polarising in the community, notwithstanding the fact that it has strong Indigenous support and input.
The Recognise campaign not only seeks Constitutional recognition for Indigenous Australians, but it seeks to correct the matter of discrimination against Indigenous people. The Recognise campaign notes that the Constitution mentioned Indigenous people only to discriminate and that, until the 1967 Referendum, Indigenous Australians were excluded even from being counted in the tally of citizens under section 127 of the Constitution.
The discussion in the community is largely around whether Constitutional recognition would undermine the sovereignty of Indigenous people and there is an amount of trepidation in trusting an initiative of this magnitude that was initiated by the Liberal Government. The Liberal Government, however, weren’t counting on Indigenous people getting into the movement and insisting on the removal of the racial discrimination provisions – enter stage left – the conservative movement.
I am an unapologetic advocate for sovereignty, recognised through treaty. That said, it is plain to see that this conservative movement seeks to divide the movements.
Whether you are for Sovereignty (treaty) or Recognise (constitutional recognition) or both, one thing is for certain – if you are Indigenous – you have a responsibility to listen to your community and serve that community.
Indigenous people in this country are born with instant responsibility. We have our ancestors’ sacrifices and hardship on our shoulders. We know and feel what they endured for this current generation and understand the gravity of responsibility for the future generations.
We are aware that 227 years of oppression is 227 years too much, and that we must work towards rectifying this injustice and setting the record straight to the general population of Australia. That Australia was settled illegally; that the nation is occupied rather than settled and that, despite this devastation endured by the Indigenous population, we don’t want to expel anyone from this land.
We know current generations love this country as we do and would not consider reciprocating the cruelty bestowed upon us for 227 years. We simply want the record set straight and we want self-determination so that Indigenous people can be responsible for their own futures, be empowered to shape a future that not only develops their communities but fosters ongoing connection to country and cultural practices.
We want assimilation taken off the agenda.
It is time for you to listen to your people Noel, because we are speaking loud and clear.” (Natalie Cromb, Noel Pearson’s assimilation agenda divides Indigenous Australians, Independent Australia).
On 3 June 2017 came the revelation that behind the Uluru statement are years of conservative negotiation and compromise led by Noel Pearson.
In early 2014, just as a parliamentary committee was being established to produce a road map towards Indigenous constitutional recognition, Pearson began a series of quiet consultations with people he calls “constitutional conservatives.”
With a future recognition referendum in mind, Pearson was looking to connect with some of those who had successfully derailed various referenda in the past and to start discussions aimed at ensuring they did not do it this time.
He did not want to see the hopes of Indigenous People raised and then dashed yet again. Conscious that politics is the art of the possible, his was not a search for perfect reform but for compromise.
He first approached Professor Greg Craven to discuss the kind of change conservatives might accept. He then turned to conservative thinkers such as Damien Freeman and now-Liberal MP Julian Leeser, the leading members of Uphold & Recognise.
Those discussions significantly influenced the direction of Australia’s constitutional debate. They also set the parameters for what was considered at the Uluru Indigenous gathering and directly shaped the statement which emerged.
“Change is often a slow-moving, lumbering thing and we become frustrated that it’s taking so long. But I have hope … that change is going to come. And when it does, nothing will ever be the same again,” reflected Pearson.
The ‘Statement from the heart’ may be the result. Certainly, the Statement stands apart from other recommendations as the first to emerge from comprehensive nationwide consultations with Indigenous People.
On 3 June 2017 Pearson’s constitutional adviser, Ms Shireen Morris was reported as confirming that the basis for what Indigenous People agreed on at Uluru was drafted in consultation with the non-Indigenous “constitutional conservatives”. The attribution was subsequently disputed by Ms Morris.
Ms Morris hailed the result as “a sensible consensus” and “a very pragmatic thing.”
“This proposal was designed with the kinds of people who have run ‘No’ cases in the past.” … “It was designed with Professor Greg Craven and Julian Leeser, MP, in the Liberal Party. He used to oppose the republic referendum and the local government referendum and he is on board with this proposal. Now that says a lot. [To Morris it said that] this is actually a very modest and practical proposal.”
Those who believe the Statement should have gone further also think there is a lot, in what it did not say.
For instance, it did not propose a statement of recognition, either in the Constitution’s preamble or in its body, precisely the purpose for which the Recognise organisation had been given $30 million over five years to educate the Australian people about.
In the past, there have been differing ideas of what ‘recognition’ meant, as well as increasing tension between Recognise and some Indigenous leaders who thought a campaign without consultation or a referendum question was a waste of money.
In addition, the Uluru Statement did not propose amending what is known as the ‘race power’ either, the power contained in section 51 (xxvi) which allows the federal parliament to make laws specifically affecting people of particular races.
Before the 1967 referendum, this part of section 51 expressly banned the government from making laws directed at Indigenous People. With almost 91 per cent support, the referendum removed the words which excluded Aboriginal and Torres Strait Islanders, paving the way for the Native Title Act which followed the High Court’s decision in the Mabo case.
But it also allowed other decisions to be made about Indigenous People, in which the question of benefit was open to debate. They include those governing the extension of the Northern Territory’s emergency intervention to the states, starting with South Australia and Western Australia.
The Uluru Statement did not endorse inserting any kind of constitutional clause banning racial discrimination, a clause that previous inquiries had recommended.
Professor Megan Davis, who is also a member of the Referendum Council, explained that the proposals were abandoned because “conversations with government lawyers and politicians” indicated they could not insert any language into the Constitution which would “fence the parliament in.”
Noel Pearson holds firmly to the view that nothing could be effectively proposed which could be seen to cede the parliament’s law-making power to the High Court.
Pearson is also a member of the Referendum Council, appointed by the Abbott government, and funded with $9 million over two years to run consultations with Indigenous People in the lead-up to a referendum. It’s work built on two key sets of previous findings.
The parliamentary committee – the first to have two Indigenous chairs in the shape of Liberal MP Ken Wyatt and his deputy, Labor senator Nova Peris – had reported in 2015.
Before that, then Prime Minister Julia Gillard had appointed an expert panel, also including Pearson, to produce recommendations on a pathway to constitutional recognition.
Chairing that panel were now Labor senator Patrick Dodson and Australia/Israel & Jewish Affairs Council chairman and former co-chair of Reconciliation Australia Mark Leibler.
Both those sets of recommendations included amending the race power. The expert panel’s 2012 report proposed a statement of recognition in the body of the constitution, not in the preamble.
Clearly, as a member of, or petitioner to, these various bodies, Pearson’s position has shifted considerably in recent years.
He has previously supported several versions of a statement of recognition. As a member of the 2012 expert panel, he endorsed the recommendation to include the statement as part of the changes to section 51. In 2015 he favoured a declaration of recognition which would stand outside the Constitution. Launching the pamphlet containing the proposal by constitutional conservatives Damien Freeman and Julian Leeser, he said that a “handsome, elegant Australian declaration” was the way forward.
Pearson’s position has slightly changed once again: he now says that the Uluru Statement’s recommended advisory body – the proposed constitutionally entrenched ‘voice’ to parliament – would form a declaration of recognition just by its existence. (Karen Middleton, The making of the Uluru statement, The Saturday Paper).
Mr Joyce was not going to be persuaded that he was in the wrong by his criticism of the statement from delegates and experts involved in the Uluru gathering.
Speaking to Radio National on 29 May 2017 he repeated himself and then added that it would have been “self-defeating” to propose something that the majority of Australians would not support.
“We’ve got to make sure that it’s saleable,” he said. “If you’re suggesting that we have local government, state government in the upper and lower house, then a federal government with a lower house, a Senate, and another chamber again … you don’t have to be Nostradamus to tell the future of what happens here. The Australian people will say no to that.”
The Uluru meetings were closed to politicians and the Referendum Council is yet to release its full report containing the detail of the proposals put forward in the working groups, which were to be handed to Prime Minister, Malcolm Turnbull, and the Opposition Leader, Bill Shorten, in June.
This gave way to criticism from constitutional lawyer Professor Gabrielle Appleby, who had attended 11 of the 12 regional dialogues held by the Referendum Council, and was also at the Uluru convention to provide legal advice and help draft the proposals.
“The idea [of a new chamber of parliament] is not what was being discussed at the dialogues in the lead-up to Uluru and that wasn’t what was being discussed in the working groups.” Professor Appleby said.
“We know that they want a voice in the political process. To say that they want to have a third chamber of parliament jumps the gun in terms of the detail of what we know about it.”
Most delegates who spoke to journalists about the Uluru proposed model described it as a representative body that Parliament would listen to when forming legislation which specifically affected Indigenous and Torres Strait Islander peoples – something more closely resembling the disbanded Aboriginal and Torres Strait Islander Commission, A.T.S.I.C. than another layer of government.
“What we did hear a lot was the understanding that A.T.S.I.C. was a statutory body and [it] was able to be abolished by statute,” Prof Appleby said. “They wanted to create something that was not vulnerable to being dismantled.”
Continued Friday with: The Uluru gathering (Part 3)
Previous instalment: The Uluru gathering (Part 1)
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.