the dreaming

This declaration is not hard to grasp. It is a new direction in the debate over constitutional recognition. It offers a better chance for a successful referendum because it breaks from the dead end this process had reached. It recognises the conservatism of the public and seeks to work with, not against, the Australian Constitution.

The political class should take more than five minutes to comprehend what it means before rejecting it. Immediate rejection betrays contempt for the diligence, realism and revisionism this document embodies.

Are there risks in the Uluru Statement? Of course. There is no easy road on this journey. Are the politicians and public entitled to be confused? Yes, the departure from the doomed stalemate of the past decade is great and the document constitutes a new direction, but not a detailed policy.

Nothing will be achieved without goodwill. Without goodwill from both indigenous and non-­indigenous peoples, this project is lost and Australia will become a poorer entity.

Compromise is the name of the game and the indigenous leaders are willing to compromise. That spirit must be reciprocated.

There are three big political steps involved in the Uluru Statement. First, under the influence of Noel Pearson the indigenous majority has abandoned its insistence that a non-negotiable condition of recognition be a constitutional ban on racial discrimination.

This is the pivotal concession. A reluctant Pearson has embraced this position over the past couple of years founded in a harsh realism. The zenith in the campaign for a constitutional clause came with the 2015 report of the joint select committee chaired by indigenous members Ken Wyatt and Nova Peris that called for a constitutional ban on discrimination on grounds of race, colour, or ethnic or national origin.

This mirrored the deepest faith of the progressive class in its aspiration to exploit the referendum to achieve a sweeping change in Australia’s constitutional character, transfer power from parliament to judges, set this country down the American path and secure guarantees that would apply far beyond indigenous issues.

Any such referendum was always doomed. It would never be accepted by a Liberal prime minister, a Coalition cabinet or a Coalition partyroom. Yet this posi­tion appeared to be locked in. To its discredit, Labor embraced this position in statements from Bill Shorten and other senior figures.

It meant that many people and institutions, such as The Australian newspaper for example, supportive of constitutional recognition, would have had no option but to oppose the referendum. Frank Brennan has long pointed out the folly of this idea, saying it meant every state or federal law or practice dealing with indigenous issues would be reviewable by a court in a process sure to inflame public divisions and tie indigenous policy in hopeless litigation.

Pearson’s success in securing the abandonment of this position is remarkable. He has worked with an array of constitutional lawyers, notably Greg Craven and Anne Twomey, and Liberal MP Julian Leeser, who has called the Uluru Statement the “big breakthrough”. The defeat of the progressive class on this issue has far-reaching import — if it cannot persuade the indigenous peoples on this front then the campaign for a constitutional bill of rights, the ideological fixation of people such as Gillian Triggs, is a truly lost cause.

Leeser tells this column the new approach, “looking at the structures of government and offering a voice in policymaking, reflected the thinking of (Samuel) Griffith and (Edmund) Barton and their colleagues who framed the Constitution, had they turned their minds to this issue”.

This brings us to the second political conclusion. At Pearson’s initiative the indigenous leaders have sought empowerment through process and institutions — incorporating into the Constitution a First Nations voice, an indigenous body, almost certainly elected, to provide advice and recommendations on proposed policy affecting indigenous peoples.

On ABC’s Q&A Pearson called it “the tent embassy in stone”. The leaders said it was designed to ­address “the torment of our powerlessness”.

Let’s get clear what it isn’t — it isn’t a new parliamentary chamber, a rival to the Senate; it has no executive or legislative power; it cannot delay laws and lacks the power to wreck the system. Given the destructive operations of the current Senate, it’s more than rich for politicians to fantasise about the damage this body could render when they have a real live wrecking machine on display. Don’t remotely think an indigenous advisory body would perform with the irresponsibility of the existing Senate.

Indeed, it is possible to think a referendum question asking “Do you support an indigenous body in the Constitution to offer non-binding advice on issues concerning the indigenous peoples?” might actually get up.

Being realistic, however, the problems are immense. The new body would be created by an act of parliament. But when? The public would need to know the nature, composition and rules of the proposed body before any referendum. They could not vote blind.

Brennan argues the Referendum Council should recommend action be taken to set up quickly the new body, since a referendum must await its established operation.

Pearson wants a referendum as soon as next year. An indigenous adviser tells this column one option was a sequence as follows: ­tabling the bill to establish the body, holding the referendum and then legislating the measure.

It is extremely doubtful that would work. Uncertainty about the nature of the body being incorporated into the Constitution will become a chronic difficulty for the referendum’s success. It is unclear how this can be solved.

The third conclusion from the Uluru Statement is the determination of the indigenous leadership to advance a treaty or range of treaties. This could kill the referendum outright. Last week’s statement called for a Makarrata Commission, not part of the Constitution and therefore not part of the referendum, to prepare the ground for treaties or agreements — “the coming together after a struggle”.

The problem is acute. While the referendum is not about a treaty, it cannot be divorced from the plan for a treaty. The Liberal Party and the Nationals have not embraced the treaty concept. There has been no considered analysis of a treaty and no concrete proposal for a treaty at the national level. Who are the exact parties to a treaty? What does it constitute? What are its consequences? It is hardly credible Malcolm Turnbull could endorse the concept.

Because the treaty has been foreshadowed but not defined, it remains a gift for those seeking to run a scare campaign about the consequences of the referendum. The danger with a treaty is that the public will see it as divisive rather than uniting.

The conundrum is obvious — by putting a treaty on the table and giving it potentially more weight than the constitutional referendum, the indigenous leaders may have ruined any hope of the referendum’s success.

The risk is that by asking for too much, they may finish with too little. There was, of course, another way. It is the way they universally reject. It is the method of the 1967 referendum — seek a modest and symbolic constitutional change, secure a huge vote, unite the nation for your cause, build massive goodwill and use the referendum’s momentum to launch a historic series of initiatives over the next 20 years.

The mistake indigenous leaders make is to vest too much in so-called “substantial” changes to the Constitution that are extremely difficult to achieve. Having insisted when John Howard was prime minister that symbolism was all-important, they now say it is worthless. Let’s tell the truth: a modest and symbolic change is far better than no change at all."

http://www.theaustralian.com.au/…/a8a45aafc630371e28432f0b5…