Discussion Chaired by Geraldine Doogue with Professor Megan Davis, Danny Gilbert AM & Noel Pearson

On Monday 23 October 2017, Danny Gilbert, Co-Chair of the Cape York Partnership Group and Co-founder and Managing Partner of the law firm Gilbert & Tobin, initiated a Sydney Institute event to promote the aspirations of the “Uluru Statement From The Heart”, a document that concluded a three day meeting in May 2017 at Uluru of over 250 Indigenous Australian community leaders at which both the Australian Prime Minister Malcolm Turnbull and Opposition leader Bill Shorten spoke. Following Danny Gilbert’s address, there was a panel discussion with Indigenous leaders Noel Pearson, Chairman of the Cape York Partnership, and Professor Megan Davis of the University of New South Wales, which was hosted by ABC presenter Geraldine Doogue. The paper which follows is an edited transcript of that discussion.*

DISCUSSION CHAIRED BY GERALDINE DOOGUE WITH PROFESSOR MEGAN DAVIS, DANNY GILBERT AM & NOEL PEARSON

Geraldine Doogue: Thank you very much indeed. Thank you Gerard and thank you ladies and gentleman for welcoming us tonight. It was a very stimulating address by Danny Gilbert and I’m sure you have a lot of questions. I want to put my first one to Noel Pearson who has written that this is an extraordinary opportunity for Australia. So, to get away from any notice of it being something like a burden to go through, your whole approach has been “No, this offers so much if we would but recognise it”. Could you develop that for us please?

Noel Pearson: I think this is our best chance. The work we’ve done has been built on the shoulders of advocacy going back to the nineteenth century. All that Indigenous people have said in the dialogues across the country now was said before us. This is an old argument. For me, this represents our best opportunity to finally deal with that. We’ve been deferring a proper confrontation with our history for too long. And so the work of the referendum council, and particularly the work coming out of the dialogues that led to Uluru, represented a real opportunity for the nation – for the rest of Australia – to step up in the way indigenous communities and leaders stepped up in Uluru. I don’t think that people quite appreciate how profound Uluru was. It really was the result of extraordinary leadership by Pat Anderson and Megan Davis in particular. Indigenous Australia came together at Uluru and it’s our best chance. 

Geraldine Doogue: I wondered what you think about this Megan. It’s a modest but profound set of proposals. Is that how you see it?

Megan Davis: I would say it’s modest. If you look at what came out of the Expert Panel and what came out of Uluru, you can see that there’s been a lot of work done in thinking about the reforms from 2012 to 2017. A lot of that work was done in the dialogues, which was an intensive process. It involved civics education, a lot of legal discussions and a lot of political balancing around what might cut it politically and what might not. It’s a modest proposal. As Noel said, post Expert Panel, it started to look increasingly symbolic, as Danny alluded to. We needed wheel it back. To go back to communities and ask what is it you want?’ And what they want is what they’ve always wanted. That was the outcome of Uluru.

The constitutional element is a very modest proposal. It’s a proposal that constitutionally enshrines a voice but leaves the functions to be determined by the parliament. The dialogues came up with some very interesting and creative ways the voice could do the work; not the same work as s116a. One that could do the work of monitoring the use of Section 51 and 26, which is the race power and one attuned to the Territory’s power. That might be a function of this body. The dialogues found modest solutions to serious legal challenges we have in the constitution, at the same time balanced up things like parliamentary sovereignty.

Geraldine Doogue: Let me ask you, did this obviously amazing process change you? And I want to I ask Noel the same thing.

Megan Davis: My first job was with George Williams at the Gilbert & Tobin Centre of Public Law 15 years ago. I was the Bill of Rights project director right. And then I was on the Expert Panel, which dictated what the proposals were that went out to the community. We chose what the options were. I was a big supporter of a non-discrimination clause. I still am. But the political blockages that we faced, post Expert Panel, and the lack of traction that we got meant that we took a different approach and came up with a front end solution to the same problem.

Geraldine Doogue: I ask this because I got the impression from the coverage that you’d been through something huge but not the rest of the country. It seems to me that this is something that needs to be conveyed. So how did you shift?

Noel Pearson: We had no idea where we would land at the end of that week. I thought there would not be the level of consensus that we got. So when it came to the statement on that Friday I was as surprised as anybody that consensus had been achieved through this meticulous process Pat Anderson and Megan and others had overseen. A gruelling six month process. We had our work cut out. And when I say “we” I mean all of us Australians. This can’t just be a black fella “we”.

We must take responsibility for this task. “We” are the majority of voters and the majority of the states. This is about Australia. This isn’t about black fellas asking white fellas. White fellas must take ownership of this. We need 90 per cent of the country on board. It’s about your country. It’s your responsibility. Don’t put this on us. The three per cent can’t carry a referendum. We need the white fellas to take ownership of Australia and to define it in a way that it has never been defined before – as a black fellas’ country too.

There’s a book of essays that I’d urge you to read that Marcia Langton and Megan put out last year called This is Our Country. This is our country. But we’ve reached the stage where I have to say to white Australians an extraordinary thing. I have to say – this is our country too. It’s our country too. We can’t see this discussion and debate as us trying to convince you. It’s high time we were convinced. We’ve been talking about this for too long. This agenda has been multi-generational and at some point white Australia must step up. Take ownership. You do the advocacy in your community because we need 90 per cent of the country to step up. A majority of voters in the majority of the states. 

Geraldine Doogue: But Malcolm Turnbull did adopt a note of caution to that sort of ringing invitation. The constitution cannot be changed by parliament – only the Australian people can do that. No political deal, no cross-party compromise, no leaders handshake can deliver constitutional change. To do that a constitutionally conservative nation must be persuaded that the proposed amendments respect the fundamental values of the constitution and will deliver precise changes, clearly understood, that benefit all Australians. That’s a real caveat. How would you reply?

Megan Davis: I don’t think it’s a caveat. That’s what the dialogues were about. I don’t see it as a caution or a caveat. We’re all well aware that 8 out of 44 referendums have succeeded. We know it’s really difficult to change the constitution. That hasn’t happened for about 30 years. We know, we know, we know. That’s what the dialogues were based on. That’s how 116a fell off. We knew we wouldn’t get it up at a referendum. The conclusion of the dialogues is a modest outcome because it’s in alignment completely with fundamental constitutional principals that the dialogues were walked through, including most importantly the principal of parliamentary sovereignty and public law principles that were weighed up.

Geraldine Doogue: But what are the precise changes, clearly understood, that benefit all Australians. What do you say they are?

Megan Davis: They are what Danny said. It’s a singular amendment to the constitution that enshrines a voice to the parliament with its functions to be left to be determined by the parliament at a later point. One of the things we’ve come up against, post Uluru, is that nobody reads anymore. That’s been a real struggle. I’m not even being sarcastic. It’s very difficult to get people to understand what happened because it’s a lot of effort to go to the referendum council website, open the PDF and read what happened.

But if you read it there’s a fair bit of meat on the bones about what the dialogues said about what that voice will look like. The phase we’re using in terms of engaging with non-indigenous Australia is broader Australian community education. Australians will vote in a referendum about what this reform looks like. Part of this is what we’re doing tonight. It is also what Noel spoke of – the three per cent spending virtually every weekend since Uluru having to do the hard yards on this. What we need is to be working with Australians to get this across the line. That was the purpose of the Uluru Statement from the Heart not being handed to politicians.

We didn’t want MPs flying in and accepting a statement and then it becomes a relic with little done in terms of actually achieving the reform we need after really hearing what it is that black fellas are saying that they want. We didn’t want the Uluru Statement from the Heart to just hang on the wall of Parliament House in Canberra. It was a deliberate decision to make a statement to the Australian people, talk down the camera to the Australian people and say that we live in an era where liberal democratic government has issues when it comes to Aboriginal affairs. That we need you to work with us to get this done. 

Danny Gilbert: Geraldine I think the answer to that question is in the hands of the Prime Minister himself. It’s for him to articulate what are the criteria of a mature nation. The nation that can honestly face its history. Can honestly face the question of the disempowerment of Indigenous people. That really gives expression to this concept of fairness, a fair go and who we are as a nation and what it means to be an Australian which demands an engagement with this question. It cannot simply be ignored. It cannot be appropriate for the Prime Minister to simply hand that as some difficult, unanswered, question back to the Australian people. It demands leadership. It’s relatively simple. But it does require a bit of thought. Noel?

Noel Pearson: I’m disappointed in what the Prime Minister said. The proposal is constitutionally conservative. We hit the brick wall of opposition to the idea that rights and provisions will be opposed to the constitution. In the wake of the Expert Panel report, I went away and thought about whether there is an alternative to this proposal that would fail? 

Of course, the proposal that has traction with constitutional conservatives is the one that says if there’s a moral rights guarantee let’s put in an institution that would have a voice and would point out what’s wrong with law and policy. Give Indigenous people a political voice in our democracy. And it will be a political voice. And it will be a vehement voice. It will be a voice that speaks on behalf of Indigenous policy and law. And so that was the alternative. This had a lot of traction with constitutional conservatives. They’re our biggest supporters, an organisation called “Uphold and Recognise”. They are in favour of upholding the constitution but also recognising Indigenous people. At Uluru, people said they would like a non-discrimination guarantee but that we would be pragmatic about this and it was more important to have a voice. But that voice is not going to be silent.

Geraldine Doogue: Which is exactly what worries Barnaby Joyce. If you overreach in politics and ask for something that will not be supported by the Australian people, such as another chamber in politics or something that sort of sits above or beside the Senate, that idea just won’t fly.

Megan Davis: But he’s talking about a third chamber which is wrong. That quote comes from a point where Barnaby was completely misinformed about the model.

Geraldine Doogue: But Noel is saying it will be a vehement voice. It will be loud and strong, it won’t be a quiescent, passive voice. It’ll be something that clearly circuit breaks or attempts to circuit break.

Noel Pearson: As it needs to. As it needs to. You can’t have a human society on earth comprising three per cent of the population but representing 30-40 per cent of the prison population, without accepting that there is something structurally wrong here. It can’t just be bad behaviour. There is something deep structurally wrong in this country and what is wrong is our powerlessness. It’s our voicelessness. We have to fix that. If Barnaby Joyce spent more than a short amount of time thinking about this he would realise that, of course, we have to have a voice in our own destiny. 

We will never fix our destiny unless we have that voice. Until we have a say and, indeed, the most say in our future. That’s what Australians must confront. Are you saying that we represent 60 per cent of children in child protection systems and juvenile detention and prisons because we’re a particularly egregious people? Of course there’s a structural problem at the heart of all of this. And when are we going to deal with it?

Geraldine Doogue: Can I just cut across you because Noel you have some wonderful rhetoric in this. You say Australians have an epic story – one of the great epic stories of the planet. That we will recognise the scale of our story when we recognise each other. I put it to you that all three of you have said there’s something structurally wrong and unjust and we have to fix it. But I’ve been reading you lately and you seem to me to be issuing a mass invitation to the people to come along and see this as an enormous possibility, which is why I asked you the first question. Is that not worth at least as much emphasis as the deficit?

Noel Pearson: It’s got to be our main strategy. It’s the message that Australians need to hear. That this is our chance. This is our chance to recognise each other and define what Australia is. I get a sense of despair around 3 am at times.

Geraldine Doogue: We all do.

Noel Pearson: I’m struggling for strategy here. Australia is a hard market place for blackfellas to make progress. For blackfellas to be heard. It’s a hard road, Australia. So, what do we do? All I can come up with Geraldine is we’ve got to conjure the better angels. We’ve got to fan the better angels. That’s all I can think of. We’ve got to get those better angels mobilised. Those same angels that have been so often missing, that have been absent. We’re going to find them, fan them, nurture, encourage and grow. We’re capable of it. But better people than us have done the same thing and did not reach the finish line.

Geraldine Doogue: I’ll give Megan a final word. Megan, do you see a great invitation? A majestic invitation to the Australian people that will work? Or does that offend you to have to think like that?

Megan Davis:  That’s what the Uluru Statement From The Heart was. Anyone who works in this space or lives in this space would appreciate that in the regions we travelled to, 13 dialogues, we found really disappearing communities. The in thing is not to talk about “deficit discourse”. In communities right now, things are really bad. Post Expert Panel there was a gutting of communities and a gutting of community governments, and any elements of autonomy still in existence. In addition to things like that, there was the Northern Territory Intervention and other quite punitive programs in communities.

Can you imagine being Prime Minister of a country where you have these polities that are just so profoundly despairing? This voicelessness and this powerlessness. And the control that Canberra and bureaucrats have over every element of your life. They would come to the dialogues, which was a huge commitment. They’re not paid. And you ask them to give up their weekend and Friday to come and listen to a civics lecture and legal lectures. It goes on for days and days. At first they would be really angry. But then people stuck at it, partly because there is continuity with a long line of Aboriginal advocacy for these reforms. But, most importantly, there was still hope that our political system works; people still had faith that, if they went through this process with the dialogues, we would get to Uluru. Maybe this time we could move the Australian people, the Australian parliament, to act on what it is that we’re saying is required in our communities.

One thing we did do in the dialogues was process the history of the way in which the law has oppressed our people, dispossessed us, with dispersals and compulsory racial segregation. All these things are inextricably linked to our identity. But we also talked about law reform. To get law reform you have to identify a deficit. That’s why we talk about how bad things are, just how bad, structurally, things are for us.

We spoke about the capacity of the law to redeem. That’s a really important thing that our people, my people, after being flogged for decades and decades can come into this process and once again and say, “Alright, we’ll have another go and have hope that the Australian people will this time hear what it is that we’re saying.”

*Two days after this discussion, Prime Minister Malcolm Turnbull announced the government would not support a referendum to establish a new Indigenous advisory body as proposed by the Uluru Statement.