01.04.18 MEMOIR - THE CHALLENGE OF NEGOTIATION

MEMOIR - CHALLENGE OF NEGOTIATION 

THIRTY YEARS AGO, at Barunga in the Northern Territory, Prime Minister Bob Hawke promised a treaty. I was there, as director of the Central Land Council. We sat in the dust and had long discussions about how a treaty might take shape, what consultations would need to take place between the states and territories, the parliament and the First Nations people. The intentions for treaty were reinforced though cultural activities. Dances spoke of the history of the lack of recognition for First Nations people, and the significance of the intentions behind a treaty was complemented by the ancient traditions of songs and stories.  

Senior law men created the Barunga Statement, painting their titles to land on the bark, inscribing it with the words: ‘We, the Indigenous owners and occupiers of Australia, call on the Australian Government and people to recognise our rights.’  

These days, as a senator from Western Australia, I am able to visit the Barunga Statement hanging in Parliament House. But I am concerned that the vision and the aspirations it represents now seem to exist only as a spectacle, waiting to be enacted. Prime Minister Hawke made a commitment to negotiate a treaty at Barunga, but when he returned to Canberra the Liberals said they would tear up any treaty as soon as they came to power. The tension between the two major parties appears much the same today.  

In the end, the treaty was a bridge too far for Hawke. Instead we commenced a reconciliation process, which lasted for over ten years. During those years, as chair of the Council for Aboriginal Reconciliation, I worked with many admirable people from all over Australia who were genuinely committed to progressing reconciliation. But as we entered this new century, the process became corporatised, bureaucratised and almost redundant. A false dichotomy seems to persist between practical reconciliation and symbolic.  

In other words, thirty years ago at Barunga, First Nations were invited to put forward their proposition for recognition, only to have their desires quashed because of political division, bureaucratic obfuscation and inertia, and fear of an electoral backlash. The lesson that needs to be learned from Barunga is that reconciliation is not only about the consultation with First Nations people and individuals of goodwill, but a process of political negotiation with and within the parliament. Recognition and treaty-making involves two parties. Both parties must want to engage and both must then negotiate and agree on terms. First Nations peoples’ aspirations alone will not win the day.  

I have learnt the hard way that we must stay focused on the political agenda of First Nations people. And we must not be distracted by the beads and mirrors government offers.  

Last year, the first and only Australia-wide constitutional convention for First Nations people was held at Uluru, the spiritual centre of many traditions that cross the country, a very strong customary-law place and symbolic of the heart of our nation. This was the culmination of twelve regional dialogues and over a decade of work on constitutional recognition.  

The recommendations of this convention became known as the Uluru Statement from the Heart. This, and the Referendum Council’s final report, recommended that the country embark on a process of truth-telling and agreement-making, and that First Nations people be given a Voice to Parliament so they can respectfully and meaningfully engage to achieve better destinies and outcomes.  

The Referendum Council entrusted these recommendations to the parliament and assumed that the Prime Minister and Opposition leader would work together towards the long-awaited referendum to cement constitutional recognition. Instead, on 26 October 2017, Australia found out, via a leak to The Courier-Mail, that Prime Minister Malcolm Turnbull had unilaterally rejected the First Nations people’s call for a Voice to Parliament. The process towards a referendum to recognise First Nations people subsequently stalled.  

It took over six months for the parliament to agree on a new process to take the recommendations forward. Labor leader Bill Shorten wrote to Prime Minister Malcolm Turnbull in the second half of 2017 proposing a joint select committee of the parliament to work through what came from the Referendum Council and Uluru; letters were exchanged between the two leaders over several months, refining the terms of reference for that committee. On 1 March 2018, the motion to establish a Joint Select Committee on Constitutional Recognition was passed in the House of Representatives. At the time of writing, I have been nominated by the Labor First Nations Caucus Committee as a co-chair of that committee. I am honoured to be nominated as a co-chair to advance the issues through parliament, and with the other co-chair to try yet again to find consensus on how parliament might go forward. But I am as aware as anyone of the cynicism about another committee to examine this issue. We are being asked to consider what many feel has already been put to us.  

In thirty years, the closest we have come to constitutional recognition or a treaty in this country is another joint select committee. This will be the fifth parliamentary committee on constitutional recognition – the only issue that our parliament has seen fit to dedicate five committees to addressing, with no progress on the ground.  

To rub salt into the wound, the new committee will again be tasked with going back and consulting with First Nations leaders – despite the clear advice and informed views that came from First Nations people last year about what we want, which was rejected by the Turnbull Cabinet. I HAVE SPENT most of my life seeking to understand what it is about this issue that makes it so difficult for successive governments to resolve. First Nations people are simply asking our parliament for recognition of who we are. We are seeking recognition of our sovereign status. We are seeking acknowledgement of our joint histories and the appalling injustices that we have suffered. We are sovereign peoples. We are the First Peoples of this country.  

The 45th Parliament is at a critical juncture on these issues, as the new joint select committee is established. Its job will to be to find an effective way to take on board what has been plainly put to us from Uluru and the Referendum Council about First Nations people having an effective Voice to Parliament on matters that affect our aspirations about truth-telling and agreement-making, and what has been put to us in prior reports so we can go forward with the support of the government, the Opposition and the minority parties – and, most importantly, the First Peoples.  

Without government support, any future referendum proposal will fail. Without cross-party support, any future referendum proposal will fail.  

Without hearing and listening to calls from First Nations people, any proposal for a referendum will be pointless. It seems any legislation that deals with First Nations people is doomed before inquired into.  

The backdrop to the establishment of this joint select committee has left distrust among the First Nations people and the government and, by default, the parliament. Prime Minister Malcolm Turnbull’s opposition to a voice, the characterisation of it as a ‘third chamber’ of parliament and the assertion that a referendum would fail, was arrived at without expression from the people of Australia.  

The key to understanding why the government has done this is in its rhetoric. When Prime Minister Malcolm Turnbull was questioned by Labor leader Bill Shorten on the matter in the House, he responded: ‘We take the view that every one of our national elected representative institutions should be open to every Australian citizen. We believe that is a fundamental part of our democracy and the rule of law.’ He used the same argument as former Prime Minister John Howard, when Howard proclaimed in 2016: ‘The Australian public will not be attracted to the idea of a country trying to make a treaty with itself.’ This fits the ideology of this government: we are all equal. However, First Nations people are saying, ‘Hang on, you took our land, did not recognise that or compensate us for it. So how are we equal?’ We are not equal in the society we find ourselves in today. There is no substantive equality and our uniqueness is constantly denied.  

In the absence of constitutional recognition, the settler society maintains the narrative of terra nullius, which underpins existing institutional arrangements and asserts the ‘rule of law’ argument, typically expressed as: ‘As citizens of Australia, we are all equal before the law.’  

In their wisdom, these prime ministers have conveniently ignored the fact that the land was taken from First Nations people by force, without consent or compensation. There was never any agreement as to how the rights and interests of the First Nations people were to be accommodated in the constitution. This rhetoric is aimed at delegitimising the genuine position of the First Nations as sovereign peoples. It has the effect of neutralising our sovereignties, subsuming our legitimate difference (what makes us legally distinct as a people) and projects the notion of citizenship equality. IT SEEMS TO me that this line of argument goes back to the founding fathers. The Australian constitution was written by people who believed  

Indigenous people were lesser beings, and their race rhetoric is entrenched in the nation’s founding document. The repeal of the race provisions was one of the key recommendations of the 1988 Constitutional Commission.  

I was co-chair of an Expert Panel in 2012 that also recommended removing the so-called ‘race powers’ in the Australian constitution. The Expert Panel report recommended:  

A statement of acknowledgment in the constitution, relevant to the lawmaking power in Indigenous affairs (new section 51a);  

A modification to the wording of the Commonwealth’s lawmaking power in Indigenous affairs (section 51(26));  

A constitutional prohibition on racial discrimination (new section 116a);  

The removal of a provision that contemplates states disqualifying people from voting based on their race (section 25).  

I understand that, having been overlooked so many times, these recommendations were not seen as a priority by First Nations people during the Referendum Council’s consultations and were not a feature of the Uluru Statement. This does not change the impact for us of being classified as a race that was considered to be dying out at the time of Federation or how a parliament may use its power against our interest.  

I now see why the question of racism in our constitution has to be revisited and challenged. Without constitutional reform and a treaty, the cards will always be stacked against us. We will be viewed as illegitimate, and our aspirations for and right to self-determination will remain elusive. We can argue about which comes first, but ultimately both are necessary. IN JUNE 2016, I entered the Federal Parliament of Australia as a Labor Party senator for Western Australia. After spending most of my life trying to achieve justice and recognition for First Nations people from the outside – in various roles that included director of the Central and Kimberley Land Councils, commissioner in the Royal Commission into Aboriginal Deaths in Custody, the chair of the Council for Aboriginal Reconciliation and as co-chair of the Expert Panel on Constitutional Recognition of Indigenous Australians – I welcomed the opportunity to work within the parliament.  

I chose to enter parliament at that time because it seemed we were on the cusp of finally recognising First Nations people in our constitution. I was hopeful I could work with the parliament on this. In my maiden speech I said:  

The Senate and the House are now becoming more representative and inclusive of all the peoples of Australia. It is a positive step along our road to have Aboriginal people participating directly in the process of making Australian law. This was not the case at the time when our founding document, the Australian Constitution, was drafted. The only two express references in the constitution were section 127 and section 51(xxvi), and both related to our exclusion – a situation that lingered in the constitutional landscape of this nation until the 1967 referendum.  

The presence of the First Australians, who occupied this continent for millennia, in this great land was disregarded. Something that Bill Stanner in his Boyer lectures referred as to as ‘a cult of forgetfulness practised on a national scale’.  

Clearly, there is work to be done to address this, with constitutional recognition of the First Australians being an important step in this process. I look forward to the report of the Referendum Council and working with the 45th Parliament on this very important task.  

While I saw great opportunity to work within the parliament at this critical time, I felt somewhat conflicted knowing that being a member of the Labor Party meant I could not be involved in the work of the Referendum Council or even be a participant in the twelve regional dialogues it held across the nation, culminating at Uluru.  

Having worked inside the reconciliation process for so many years, it was hard to let go of my leadership role in that space and accept that I was now, for all intents and purposes, an outsider. I accepted the sacrifice with the hope I would be able to advance the aspirations of First Nations people within the parliament and hoped my decades of work would inform the final report of the Referendum Council. ON THE DAY the Referendum Council handed down its final report, I did not treat it with great optimism, because I knew that the aspirations of  

First Nations people would butt up against the political reality of the current government. I anticipated that the notion of constitutional entrenchment of a Voice without having first worked out the detail in legislation was going to be a challenge to the government and many in the community.  

The council rightly sought the entrenchment of the Voice in the constitution because of the past history of governments abolishing national entities set up under legislation. Without an institution of our making, First Nations people are subjected to a public-sector dependency syndrome, governed by distant and detached bureaucrats.  

I look at the appalling history we have been dealt, a history that has led to this quagmire of poverty and dependency, and I ask myself: how do we get out of this bog? How do we battle against it? How do we get power to manage and manoeuvre the system to achieve our aspirations? How do we liberate ourselves from that dependency? How do we enjoy our sovereign status in a reconciled nation? These are serious questions for us to grapple with and, without putting the blame on anyone else, we have to recognise the responsibility of others in creating this situation. Unenlightened government policies have a lot to do with these circumstances.  

This is where the desire for a Voice comes from. It comes from a deep desire to break the shackles in which we have been bound by governments, and the ideologues who refuse to admit that a great injustice has been done and has been covered up by the rhetoric that came with terra nullius. This has led to the false belief that First Nations people have no rights apart from those the government deigns to give us.  

The idea of a Voice in one’s own affairs is not revolutionary. If anything, it is a sad reminder of how we have been driven to the conclusion we are voiceless when it comes to the decisions that affect us, sent to the bottom of the scrap heap and consigned to a lesser status in society.  

At Uluru, First Nations people called for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history. A treaty would not require a referendum, but it does require openness on both sides of parliament to embark on the truth-telling and agreement-making process.  

Australia needs a shared narrative. The narrative must be true and include how land was taken, how First Nations people were dispossessed, how First Nations people came to be dependent, and how marginalised and displaced we have become. We need a common story, as a nation, that will motivate us to change the current sad and sorry landscape, and reset our relationship with First Nations people. No fair-minded Australian could think we want to be in this sad state by our own desire.  

The current Commonwealth Government seems to have completely ruled out negotiating a treaty. So it is heartening that at the regional level we know that several jurisdictions are going down the path of treaty-making: South Australia and Victoria have taken to the task; if elected, a NSW Labor Government would too. There is discussion underway in the ACT and the NT. I say that if state and territory governments are saying ‘We are interested’, the leadership of the First Nations has got to say ‘Okay, we’re up for the debate.’ Change will come from such an agreement.  

Regional treaty-making is a good place to start, but after a treaty is agreed it will still be subject to Australian law and our constitution. While I totally support states and territories sitting down and negotiating with First Nations peoples, unless treaties are respected in the constitution they run the risk of being broken or eroded by the Crown. As a federation we need a national agreement or treaty to settle the ongoing legacy of terra nullius. A national treaty must focus on what needs to be in a federated constitution that would support our assertion as sovereign peoples. IN 2015, I made a plea to then Prime Minister Tony Abbott: ‘Does Australia want to have a relationship with Aboriginal people, or does it not? Or does it simply want to improve the management and control systems over the lives of Aboriginal people? That’s the seminal issue.’  

Three years on, it seems the same question must be asked. The relationship between First Nations peoples and the state needs to be reset and recalibrated to one of respect, partnership and dialogue at all levels of government, guided by policy principles which are mutually agreed with First Nations people. Our nation’s honour and integrity is bound up by how we realise these matters.  

I agreed to become a senator for the Australian Labor Party and have committed myself to working with the party and with the First Nations leadership. Despite all the setbacks, the new committee provides us with an opportunity to come together in a spirit of bipartisanship and with goodwill to constructively realise the aspirations of First Nations peoples and reset our relationship. I want the parliament to work together on this task. I hope through the committee process, the government will reconsider their opposition to a Voice.  

But as I learnt from Barunga, we must not become distracted by the political agenda and must remain focused on the aspirations of First Nations people. That is why, if the government remains opposed to a Voice, the Labor Party has committed to legislating a Voice as a first step to ensure credibility is given to the aspirations of those at Uluru. Hopefully through legislating a Voice, support for a referendum will be gained and constitutional reform will be in our sights.  

Labor has not opposed a treaty and will advance calls for a Makarrata Commission, truth-telling and agreement-making process as an opportunity for the nation to be in a better place, and so reset its relationship with First Nations people. It is the parliament’s job to work towards resolving such matters, balancing them and ensuring that human beings are put first, not our institutional prejudices. In the spirit of reconciliation, of relationships based on mutual understanding and respect, the parliament must rise to the challenge.  

I have often compared Australia’s journey to reconciliation to driving on unsealed roads between remote towns. The journey is a long, slow and progress is incremental. It is often bumpy and difficult to navigate. Sometimes we lose our way or get off track and encounter obstacles that challenge our commitment.  

Over the past six months it has felt as if we were bogged in a sandy quagmire on the road to constitutional recognition. Now, we have a new opportunity. We must make it happen. It’s time to engage the four-wheel drive.  

This Memoir Piece was first published in The Griffith Review edition 60, First Things First, released April 2018.  

 

 

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