Indigenous Recognition – A Conservative Answer

Julian Leeser, a lawyer by training, was Director of Government Policy & Strategy at the Australian Catholic University before becoming the Liberal Party candidate for Berowra in the 2016 federal election, after the retirement of the Hon Philip Ruddock MP. On Wednesday 27 April 2016, Julian Leeser joined Shireen Morris, a senior policy adviser at Cape York Institute and co-editor, with Damian Freeman, of The Forgotten People: liberal and conservative approaches to recognising indigenous peoples, to discuss approaches to Constitutional change towards Aboriginal reconciliation and Indigenous protection of rights. The paper which follows is an edited transcript of the speech given.

INDIGENOUS RECOGNITION – A CONSERVATIVE ANSWER

JULIAN LEESER

I’m pleased to acknowledge the Gadigal people of the Eora Nation and pay respects to their elders past and present.

Can I acknowledge Gerard and Anne Henderson. I don’t think you’ve made it in Sydney intellectual circles until you’ve been asked to address The Sydney Institute. So thank you very much for inviting me this evening.

And, can I acknowledge my friend, Shireen Morris. What Shireen and Noel Pearson and others have done in this debate, borrowing a phrase that Shireen used in her presentation, is to show amity and kindness to constitutional conservatives. By trying to work out a way in which by going about a reform they might make better policy, and reaching out to people whose initial instinct was not the same as their own. We lack some of that in our public life and we need much more of it. Can I, finally, acknowledge my friend Damien Freeman who co-wrote a chapter in this book with me and is also the co-editor of this fine volume.

However you look at it, at the core of good government is good decision making. Whatever our views might be about what’s best for Australia, policy makers should all be committed to the idea that we get good policy making from good processes. Different areas of public policy present unique challenges for policy makers.

It’s an understatement to say that Indigenous Affairs is more challenging than any other aspect of government in Australia. Over the last two centuries, law makers have experimented with a range of approaches to policy making in this area. Almost all the policy makers in the Indigenous policy space have approached their subject with goodwill, trying by the lights of their age to do what they thought was best. No one could doubt that there had been times in the past where things have been done badly, even if they were motivated by good intentions.

Moving forward, the challenge for Australian policy makers is to work out how we can design the best policy solutions to help close the gap between Indigenous people and non-Indigenous people.

The more I’ve become involved in the debate about Indigenous recognition, the more I’ve come to understand that the debate is less about symbolism and more about the question of Indigenous policy making than perhaps has previously been acknowledged. The issue of constitutional recognition has been championed by all three living Liberal prime ministers. John Howard committed himself to constitutional recognition, before losing office. As did Tony Abbott whose commitment to Indigenous policies is widely acknowledged. I was delighted to see Malcolm Turnbull commit to a referendum on this issue as well. As the Prime Minister noted, it’s not for the faint hearted this constitutional amendment business. And Malcolm Turnbull knows this better than most.

I perhaps differ from others in this debate, in that I’m very proud of Australia’s history. Compared to many other countries, our history is generally good and we have a very good constitution and a very good constitutional system. That won’t surprise anyone who knows anything about my background. I’ve had very strong reservations about changing the constitution and I believe strongly that courts shouldn’t be empowered to rule on political issues, but they are best resolved by the parliament which is accountable to the people.

I was a member of the “No” case committee for the 1999 Republic referendum that successfully argued against a proposal to amend Australia’s constitution to make us a republic. I co-edited a book called Don’t Leave Us with the Bill a collection of essays that were very important in the case against the Rudd Government’s proposal for an Australian Bill of Rights. And I led the citizens “No” committee against the Gillard government’s proposed law to amend the constitution to recognise local government.

The proposals for a republic, a bill of rights and recognition of local government were all either defeated or abandoned before they had the opportunity to be defeated. It’s a matter of public record that I’ve had a hand in all of these. So I know something about how to defeat bad proposals that threaten to change our system of government, or do even worse.

But today I’m here to talk about why I think constitutional recognition of Indigenous people might be in a different category. I remain opposed to any proposals for Indigenous recognition that threaten to change our system of government. But I’m here to argue that there is a proposal for Indigenous recognition that might actually make our system of government work better.  Nothing I have said should be interpreted as unqualified support for any proposal for constitutional recognition of Indigenous people. In particular, a couple of proposals that the expert panel on Indigenous recognition put forward I would be strongly opposed to. Those proposals include the insertion of a racial non-discrimination clause in the constitution and inserting symbolic recitations either within constitution itself or within the preamble to the constitution.

It became clear, immediately, that the expert panel’s call for a racial non-discrimination clause would be actively opposed by constitutional conservatives like myself. The simple reason for this is that it is for democratically accountable politicians assembled in our parliament, not the courts, to determine where the balance on these policy issues lies. We shouldn’t be outsourcing such political issues to the seven justices of the High Court. We don’t want a situation where the High Court prevents future parliaments from abandoning fixed policy approaches or trying new policy approaches.

The other proposal that’s unacceptable is the insertion of a symbolic statement in either the constitution or in the preamble. I’ve contributed a chapter to the book Uphold and Recognise which Damien Freeman and Shireen Morris have edited and in which I outline my objections to a new pre-ambular recitation. The issue of problems with the preamble have not been given enough attention in the broader debate. Despite the fashionable assertion to the contrary, any new words inserted into the constitution will affect the way the constitution is interpreted by the High Court. This is the case wherever the words are inserted.

In my chapter, I cite a sitting justice of the High Court and a justice of the NSW Court of Appeal who counselled that, “The effect of the inclusion of broad statements of contemporary values in the preamble, as has been repeatedly urged by numerous non-specialist commentators, would be highly uncertain.” Those authors were writing in the context of the preamble debate that occurred at the end of the 1990s, but their words remain true today.

Symbolic language is by its very nature ambiguous. We value poetry because a poetic expression is susceptible to multiple meanings. It enriches our experience of the poetry. Uncertainty about a poem doesn’t detract from that experience. The same cannot be said for a constitution.

The Australian constitution is, as Shireen and others have said, a practical and pragmatic charter of government. It works well because it’s drafted in a way that sets out the rules for how legislative, executive and judicial power is to be exercised in the Commonwealth. And the division of power between the Commonwealth and the six states that constitute it. So I’ll continue to oppose the introduction of any symbolic expressions or historical recitations in the constitution. That’s not to say I’m opposed to symbolic and historic recitations about our Indigenous people.

Damian Freeman and I developed a proposal that would enable the Australian people to vote for the Australian Declaration of Recognition. It would provide for the symbolic recognition without any legal uncertainty arising from the amending of the constitution. That proposal was set out in a chapter in Capturing the Nation’s Aspirations. We developed the proposal as a way of achieving symbolic recognition without creating legal uncertainty. I still believe that an Australian Declaration of Recognition, designed by Australians and voted on by Australians at a plebiscite, is the best way of solving the problem.

However, symbolic recognition isn’t the only issue we need to address. When Damien and I first began a process of engaging with Noel Pearson and with Shireen Morris and other Indigenous leaders, we learnt that the desire for symbolic recognition among many non-Indigenous Australians is actually dwarfed by the desire for practical change favoured by many Indigenous Australians. Indigenous recognition for Indigenous people means improvement in the processes of Australian government for the future. The expert panel’s way of doing this was through the racial non-discrimination clause.

Noel Pearson was an influential member of that panel. Through his subsequent dialogue with constitutional conservatives, he started to understand why we so strongly objected to such proposal. He challenged us to find a way, a conservative way, of guaranteeing that policy making in Indigenous policy areas would be better in the future. He wanted us to design a path that would be consistent with the Australian constitutional structure.

As a consequence of these discussions, Noel changed his approach. He decided to call for an Indigenous Advisory Body rather than a racial non-discrimination clause. Noel’s proposal, I believe, deserves serious consideration. It stands to improve the way we make policy around Indigenous Australians and Indigenous people in the future. I believe that such a proposal has the potential to make a positive contribution to our system of government more broadly.

In her contribution to The Forgotten People, Professor Anne Twomey suggests one way in which the constitution might be amended to give effect to Noel’s proposal. The idea is that the constitution would establish an advisory body and that parliament would be required to consider the advice of this body when passing laws considering Indigenous affairs. The constitution would leave it as a matter for parliament to determine how the body would be constituted and all aspects of its operations.  From the perspective of a constitutional conservative, this proposal has two distinct merits.

First, the proposal is designed in such a way that it doesn’t empower the High Court to strike down acts of the parliament. There will be no new avenue to challenge laws in the High Court. Parliament would be obliged to consider advice that the body presents to it, but it wouldn’t be required to accept that advice. That is very important. The new body will not be able to frustrate the will of parliament in any way.

Secondly, the proposal is designed to ensure that better policy making occurs in the Indigenous policy space. Indigenous people are unique in our constitutional structure in that they’re the one group of people that the parliament has the right to make special laws about. If parliament is going to retain this power, and I believe it has to retain this power, because without such a power, the parliament can’t do things like amend the Native Title Act.  But if the constitution is giving the parliament this power, it should also stipulate that parliament must consult people affected by its laws before it exercises these powers. That would be no different from how we would want to be consulted about laws that affected us, say, as neighbours to a development application.

Unfortunately, there’s a long history of law-makers in Australia failing to consult Indigenous people properly before making laws. The Forgotten People discusses liberal and conservative approaches to Indigenous recognition. The contributors advance proposals for symbolic change and also practical change. In this way, we are striving to reconcile the need to address different problems in the best possible way.

An indigenous advisory body that’s established by the constitution and which provides non-binding advice to the parliament about indigenous affairs is the best way of addressing the need for practical guarantees that policy making will be done better in the future without undermining the fundamental structure of the constitution. An Australian Declaration of Recognition, designed by Australians and voted on by Australians but which stands outside the constitution with no legal effect, is the best way of addressing the symbolic statement of recognition without creating legal uncertainty about the interpretation of the constitution by the High Court.

Within the next few months, the referendum council chaired by Mark Leibler and Pat Anderson is due to make recommendations to the prime minister and leader of the opposition about what question should be put to the Australian people at a referendum on Indigenous Recognition. I hope that the referendum advisory council will take the proposals for an Indigenous Advisory Body and an Australian Declaration of Recognition very seriously. They offer an approach to recognition of Australia’s Indigenous people that addresses both the long held aspirations of Indigenous leaders and the legitimate concerns of liberal and conservative commentators.