Transcript – Noel Pearson’s Whitlam Oration: In Honour Of The Old Man

13-11-13_pearson-whitlam-oration3

THE REWARD FOR PUBLIC LIFE IS PUBLIC PROGRESS1:

AN APPRECIATION OF THE PUBLIC LIFE OF

THE HON. E.G. WHITLAM AC QC

PRIME MINISTER 1972-1975

2013 WHITLAM ORATION

Noel Pearson2

Whitlam Institute

University of Western Sydney

13 November 2013

In his 97th year, in this third oration in honour of Australia’s 21st prime minister, I

use the appellation ‘old man’ with all the reverence and love of its meaning in the

ancient culture of my people. An acute consciousness of the honour bestowed by

the governors of the Whitlam Institute to one so richly undeserving, is leavened

by unalloyed gratitude for the chance to salute this old man in the twilight of his

extraordinary life. The alacrity with which this invitation is seized belies

somewhat the humility which an outsider should properly feel when afforded

such a rare and august privilege.

I say ‘outsider’ in the sense of the Australian Labor Party, but if I was born

estranged from the nation’s citizenship, into a humble family of a marginal people

striving in the teeth of poverty and discrimination – it is assuredly no longer the

case. This because of the equalities of opportunities afforded by the Whitlam

program which successive governments built upon, and even where predilections

were otherwise, their institutionalisation made their reversal difficult. The truth

is I, and numbers of my generation, are today bourgeois, albeit with varying

propensities to decadence.

I come to reflect on this old man’s legacy with no partisan brief. I have no family

or community tradition in any of Australia’s political parties: raised next to the

1 Paul Keating: “Public life is about public progress; that’s the only reward. Everything else is

puffery”. http://www.investordaily.com.au/28188-on-the-record-with-paul-keating. Accessed 11

November 2013.

2 Chairman, Cape York Partnership, Cairns, Queensland.

woodheap of the nation’s democracy, my family never developed a passion or

allegiance for any party. In my own political philosophy the opportunity

redistribution principles of the social democrats naturally resonated with me, the

social conservatism and traditionalism of the conservatives was consonant with

my mission and cultural upbringing, and I came to understand the power of the

liberal principles of personal agency and self-interest as animators of individual

and social progress.3

My reflection amounts to an immense gratitude for the public service of the

Honourable Edward Gough Whitlam AC, QC, Prime Minister of Australia, 5

December 1972 to 11 November 1975. Let me commence with a personal

perspective of indigenous policy under the Whitlam government.

1 Whitlam and Indigenous progress

I was born in Cooktown two years before the referendum that gave my people

citizenship, raised in the Lutheran mission of Hope Vale. In 1996 I took this old

man on a tour there and he recalled his wartime service with the RAAF in

Cooktown. We spoke about the history of the mission and my youth under the

government of his nemesis: Queensland Premier Joh Bjelke-Petersen.

My home was an Aboriginal Reserve under a succession of Queensland laws

commencing in 1897. These laws were notoriously discriminatory and the

bureaucratic apparatus controlling the reserves maintained vigil over the smallest

details concerning its charges. Superintendents held vast powers and a cold and

capricious bureaucracy presided over this system for most of the twentieth

century.4

In June 1975 the Whitlam government enacted the Aboriginal and Torres Strait

Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).

The law put to purpose the power conferred upon the Commonwealth

Parliament by the 1967 referendum: finally outlawing the discrimination my

3 I outlined my own philosophical search for the ‘radical centre’ between conservatism, liberalism

and socialism in my 2010 John Button Oration.

4 For an account of the history of Queensland’s Aboriginal Reserves see Rosalind Kidd, The Way

We Civilise, UQP, 1997

father and his father lived under since my grandfather was removed to the

mission as a boy, and to which I was subject the first 10 years of my youth.

Whereas my forebears – as had generations of men and women from across

Queensland’s reserves – worked as drovers and stock-workers, agricultural

labourers and domestic help, and whatever unequal wages they received were

managed by the Department of Native Affairs: the 1975 law now deprived the

Queensland Government of the power to manage the property of Aboriginal

Reserve residents without consent. Amongst the files of a great grandmother

from Chillagoe in the hinterland of north Queensland, whose wages were

managed by the local police protector – protectors were notorious for stealing

from the wages they managed – we found a file-note from a protector informing

his successor to be careful dealing with her money, because though she was bushborn,

she knew how to count!

A late mentor and friend told me when he returned as a young man from his first

job outside the mission in the 1960s, he bought his first motorcar with his savings

and drove proudly back home to visit his family. No one owned cars in the

mission in that time. The next day the superintendent ordered him to

immediately remove his car from the reserve as he had no permission to possess a

vehicle. I asked what he did. His precise words were that he obeyed “without

bend or bow”. There was no questioning in those days.

Powers regulating residency on reserves without a permit; the power of reserve

managers to enter private premises without the consent of the householder; legal

representation and appeal from court decisions; the power of reserve managers to

arbitrarily direct people to work; and the terms and conditions of employment –

were now required to treat Aboriginal Queenslanders on the same footing as

other Queenslanders, and indeed other Australians.

At the level of legal policy at least, we were at last free from those discriminations

that humiliated and degraded our people. Whilst discrimination would continue

in practice and the last vestiges of the old institutional controls of Queensland’s

reserve administration lasted into the next decade (I was a young elected

councilor when we severed the Lutheran Church’s role in the secular

administration of our community in 1989) the Whitlam legislation meant

freedom.

The companion to the Queensland discriminatory laws enactment, which would

form the architecture of indigenous human rights akin to the Civil Rights Act 1965

in the United States, was the Racial Discrimination Act 1975, enacted that same

month.

It was in Queensland, under Bjelke-Petersen, that the importance of the Racial

Discrimination Act became clear. In 1976 a Wik man from the Wynchanam clan

of Aurukun on western Cape York Peninsula, John Koowarta, was supported by

the Aboriginal Land Fund Commission to purchase the Archer Bend Pastoral

Lease from its white owner. Bjelke-Petersen directed the lands minister to refuse

the transfer, citing a policy of the Queensland Government preventing the sale of

Crown leaseholds to Aboriginal groups. Koowarta complained to the Human

Rights and Equal Opportunity Commission that the Queensland Government’s

action was unlawful under the Racial Discrimination Act. The complaint was

upheld. However the Queensland Government challenged the constitutional

validity of the Racial Discrimination Act before the High Court.

The High Court’s decision in Koowarta v Bjelke-Petersen5 came down in 1982, and

by a 4-3 majority the Racial Discrimination Act was upheld as a valid exercise of the

external affairs power of the Commonwealth. However for John Koowarta and

his people the victory was hollow because in an act of spite Bjelke-Petersen

converted the pastoral lease into the Archer Bend National Park. The irony of

one of Queensland’s all-time champion ball and chain land-clearers using an

environmental tenure to deny traditional land rights, spoke volumes.

Like every law student I read this landmark case at Sydney University, returning

north to work with my elders at the Cape York Land Council. One was old man

John Koowarta. In 1991 I campaigned with him for the new state Labor

government of Wayne Goss to enact land rights legislation to give justice to

Koowarta’s people. The Goss scheme which enabled land claims over national

parks6 failed to do justice.

Old man Koowarta died a broken man. The winner of a landmark High Court

precedent, but the victim of an appalling discrimination.

5 (1982) 153 CLR 168

6

Aboriginal Land Act 1991 (Qld)

In 2010 Premier Anna Bligh made provision for 75,000 hectares, a portion of the

National Park created by Bjelke-Petersen, to be returned under Aboriginal

Freehold title. A measure of justice was finally restored to Koowarta’s people.

The crucial importance of the Racial Discrimination Act to land rights would again

become apparent, again in Queensland and again involving Joh Bjelke-Petersen.

In 1982 a group of Murray Islanders, led by an expatriate activist-comegroundsman

working at James Cook University in Townsville named Eddie

Mabo, commenced proceedings in the High Court claiming title under the

common law to their traditional homelands in the Torres Strait. In 1985 Bjelke-

Petersen’s government sought to kill the Murray Islanders’ case by enacting an

extraordinary law called the Queensland Coast Islands Declaratory Act.

Extraordinary because it said that if native title existed in the islands of the

Torres Strait as claimed by Mabo, then this Act effected a retrospective

extinguishment of any such title.

If the Queensland Act was effective, the Mabo case would have died there and

then. The Murray Islanders sought a declaration from the High Court that the

Queensland law was unlawful under the Racial Discrimination Act. In December

1988 the High Court ruled 4-3 the Queensland law was invalid because it denied

the Torres Strait Islanders their human right to own and inherit property, in a

racially discriminatory way. This case was called Mabo No. 17.

Consider it: Bjelke-Petersen’s position was that Mabo’s people should not enjoy

the same human right enjoyed by other Queenslanders: the right to own and

inherit property. He was happy for mainstream Queenslanders to own and

inherit property, in fact one would think he would have defended their rights to

the hilt. But he wanted to deny these same rights to Torres Strait Islanders.

There was no political or media uproar against Bjelke-Petersen’s law. There was

no public condemnation of the state’s manoeuvre. There was no redress

anywhere in the democratic forums or procedures of the state or the nation.

If there were no Racial Discrimination Act, that would have been the end of it.

Land rights would have been dead. There would never have been Mabo No.28 in

1992. There would have been no Native Title Act 1993 (Cth). There may never

have been native title, especially if other states around Australia followed Bjelke-

7 Mabo v Queensland (No.1) (1988) 166 CLR 186 8 Mabo v Queensland (No.2) (1992) 175 CLR 1

Petersen’s lead in enacting the Coast Islands Declaratory Act. This is certainly what

Premier Richard Court’s government did when they passed the Land (Titles and

Traditional Usages) Act 1993 (WA). This law aimed to extinguish native title

throughout the entire of Western Australia and replace it with certain

entitlements set out in this state Act. In The Native Title Act Case9 the High

Court ruled the Land Titles and Traditional Usages Act invalid and native title

survived in Western Australia.

I traverse the history of land rights laws to show that without this old man the

land and human rights of our people would never have seen the light of day. The

importance of Mabo to the history of Australia would have been lost without the

Whitlam program.

2 What did this Roman ever do for us anyway?

This brief survey of land rights in Queensland does not include the more wellknown

achievements of the Whitlam government: the repossession of the

Gurindji of Wave Hill when the prime minister said:

“Vincent Lingiari, I solemnly hand to you these deeds as proof, in

Australian law, that these lands belong to the Gurindji people, and I put

into your hands this piece of earth itself as a sign that we restore them to

you and your children forever.”

Neither does it anticipate the consequences of the Woodward Royal

Commission established to inquire into the recognition of traditional land rights

in the Northern Territory. It was this old man’s initiative that led to the Fraser

Government enacting the Aboriginal Land Rights (Northern Territory) Act 1976

(Cth), legislation that would see more than half of the territory returned to its

traditional owners.

Of course recalling the Whitlam government’s legacy has been for 38 years since

the dismissal, a fraught and partisan business. Assessments of those three highly

charged years and their aftermath, by protagonists and later commentators alike,

divide between the nostalgia and fierce pride of the faithful, and the considerable

opinion that the political and economic management record of the Whitlam

years represented the nadir of national government in Australia.

9 Western Australia v The Commonwealth (1995) 128 ALR 1

Lindsay Tanner observed in a 2011 commentary:

The [Whitlam] government’s record has been clouded by the intense

demonisation that followed in the wake of its dismissal. Conscious of the

enormity of the constitutional atrocity they had engineered, conservatives

went to extraordinary lengths to sully the Whitlam government’s legacy, as

if to justify their misuse of the Senate and the dismissal with a plea of selfdefence.

10

Let me venture a perspective.

The Whitlam government is the textbook case of reform trumping management.

There are four permutations of government: government that fails reform and

merely manages, government that balances reform and management, government

that reforms and fails management, and government that fails in both. Whitlam’s

was a reform government for whom political and economic management was

secondary. In less than three years an astonishing reform agenda leapt off the

policy platform and into legislation and the machinery and programs of

government. The country would change forever. The modern, cosmopolitan

Australia finally emerged like a Technicolor butterfly from its long-dormant

chrysalis.

Thirty-eight years later we are like John Cleese, Eric Idle and Michael Palin’s

Jewish insurgents ranting against the despotic rule of Rome, defiantly demanding

“and what did the Romans ever do for us anyway?”

“Apart from Medibank?”

“and the Trade Practices Act 1974?”

“cutting tariff protections?”

“and no-fault divorce and the Family Law Act 1975?”

“the Australia Council?”

“the Federal Court?”

“the Order of Australia?”

“federal legal aid?”

“the Racial Discrimination Act 1975?”

“needs-based schools funding?”

10

Lindsay Tanner, The Monthly, June 2011

“the recognition of China?”

“the Law Reform Commission?”

“the abolition of conscription?”

“student financial assistance?”

“FM radio and the Heritage Commission?”

“non-discriminatory immigration rules?”

“community health clinics?”

“Aboriginal land rights?”

“paid maternity leave for public servants?”

“lowering the minimum voting age to 18 years?”

“fair electoral boundaries and Senate representation for the Territories?”

“Apart from all of this, what did this Roman ever do for us?”

And the prime minister with that classical Roman mien, one who would have

been as naturally garbed in a toga as a safari suit, stands imperiously with

twinkling eyes and that slight self-mocking smile playing around his mouth – in

turn infuriating his enemies and delighting his followers.

There is no need for nostalgia and yearning for what might have been. The

achievements of this old man are present in the institutions we today take for

granted, and played no small part in the progress of modern Australia.

There is no need to regret three years was too short. Was any more time needed?

The breadth and depth of the reforms secured in that short and tumultuous

period were unprecedented and will likely never again be repeated. The Devil

might care attitude to management as opposed to reform imperatives is unlikely

to be seen again by future governments whose priorities are to retain power

rather than reform. We saw this with that succession of provincial Labor

governments these past twenty years.

3 Promoting equality

Let me look to the future. The Whitlam program as laid out in the 1972 election

platform, consisted three objectives:

• to promote equality;

• to involve the people of Australia in the decision-making processes of our

land; and

• to liberate the talents and uplift the horizons of the Australian people

This program is as fresh as it was when first conceived. It could scarcely be

better articulated today. Who would not say the vitality of our democracy is a

proper mission of government, and should not be renewed and invigorated? Who

can say that liberating the talents and uplifting the horizons of Australians is not

a worthy charter for national leadership?

It remains to grapple with the idea of promoting equality.

My chances in this nation were a result of the Whitlam program. My

grandparents and parents could never have imagined the doors that opened to me

which were closed to them. I share this consciousness with millions of my fellow

Australians whose experiences speak in some way or another to the great power

of distributed opportunity.

I don’t know why someone with this old man’s middle – perhaps more accurately,

upper middle – class background, could carry such a burning conviction that the

barriers of class and race of the Australia of his upbringing and maturation,

should be torn down and replaced with the unapologetic principle of equality. I

can scarcely point to any white Australian political leader of his vintage and of

generations following of whom it could be said without shadow of doubt he

harboured not a bone of racial, ethnic or gender prejudice in his body. This was

more than urbane liberalism disguising human equivocation and private failings.

It was a modernity that was so before its time as to be utterly anachronistic.

For people like me who would have no chance to attend university if left to the

means available to our families, we could not be more indebted to this old man’s

foresight and moral vision for universal opportunity. It is my observation that

those whose families could never have given them such opportunity, possess a

desperately acute understanding of how precious it was and is. I can understand

the special desperation of former Prime Minister Julia Gillard in respect of

education. It was all she had and it was her main chance. What the Whitlam

program gave her was something her family – for all of the things they could, a

loving home, every encouragement and so on – could never give her: the chance

to attend university. My family was the same. Except my parents could scarcely

understand what university was. They gave me love, my father learned Francis

Bacon’s injunction from somewhere and drilled me incessantly that “reading

makes a full man”, my mother gave me vegemite damper and tea and sent me off

to school every day – but it fell to society through the national government to

give me the chance to attend university. I well understand Gillard’s passion in

relation to educational opportunity. What I don’t understand is how it was that

the old man in whose honour I speak tonight had the vision and determination

even though he himself came from a relatively advantaged family background.

His was not the usual bourgeois temper. Those of us who would rise up in the

world of opportunity thanks to the educational doorways opened by the Whitlam

government, would soon lose our understanding of how it was that we prospered.

It is with this university-educated class that I have developed some fundamental

differences in respect of how the project for equality might be understood and

prosecuted. It is fair to say that some of my policy convictions around tackling

social disadvantage have been at odds with much progressive thinking.

These debates cannot be canvassed at proper length here tonight, but I might at

least sketch an outline. I have a problem with people from my class who have

obsessed too much about the politics of identity to the exclusion of the politics

of material and economic wellbeing. I have a problem with people from my class

whose relativism actually disguises a soft bigotry of low expectations, and double

standards about what constitutes progress. I have a problem with people whose

sole concern with the structures of oppression counsels the disadvantaged not to

be agents of their own progress notwithstanding that oppression. The truth is

that personal agency and structural reform must be complementary.

I advocate land rights and welfare reform. I advocate cultural determination and

economic development. And I resist progressives who will not apply to the

disadvantaged the same standards they apply to themselves. The advantaged are

advantaged because they pursue their self-interest. Yes, even progressive people

are advantaged because the liberal engine of self-interest burns within them as

much as it does their cultural opponents on the right. I have a serious problem

when progressive people seek to deny that individual and social progress of the

disadvantaged is also about self-interest. Self-interest for too many progressives is

anathema to social justice, when in fact it is the very engine of the justice that is

sought.

Of course liberal self-interest must be met with opportunity. And it behoves the

wider society through its government to ensure that everyone has chance and

opportunity. This is where the policy convictions of Prime Minister Whitlam in

securing and spreading opportunity for all, have been so germane to the uplift of

many millions of Australians.

Our thinking in Cape York includes another insight. In an era where passive

welfare has had such a corrosive effect we have come to understand that the

building of capabilities within disadvantaged families and individuals, requires not

just opportunity, but personal responsibility. Our equation is: Opportunity plus

Responsibility equals Capability.

The post-Whitlam project for equality for the most disadvantaged must abandon

much of the accumulated progressive theology on how the poor need not always

be with us.

Constitutional recognition of Indigenous Australians

I now want to finally turn to the question of constitutional recognition of

Indigenous Australians.

Constitutional recognition of Indigenous peoples has been on the agenda for a

long time. Now, momentum for change is coming to a head. In January 2012 the

Expert Panel delivered its recommendations to Prime Minister Gillard.11 A public

education campaign has been mounted.12 Lawyers are workshopping possible

words and amendments. Politicians are deliberating on changes.

To win a referendum, a majority of voters in a majority of states need to vote

yes.13 For that to happen, bipartisan support for the proposal must be achieved.14

If we expect Australians to vote yes, the general public needs to feel the change is

necessary, and understand the problem we are trying to fix. What is wrong with

our Constitution the way it is? Why does it need to change?

11 Expert Panel on the Constitutional Recognition of Indigenous Peoples, Final Report (2012)

‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’,

Recommendations.

12 See http://www.recognise.org.au

13 Constitution of Australia, s 128.

14 See discussion on the importance of bipartisan support in George Williams ‘Recognising

Indigenous peoples in the Australian Constitution: what the Constitution should say and how the

referendum can be won’ (2011) 5(1) AIATSIS Native Title Issues Paper: land, rights, laws, 11-12.

For the most part, our Constitution is fine. It has set up the legal framework for a

stable, prosperous democracy in Australia. It is – mostly – written in neutral

democratic language. It contains no gender bias. It makes no mention of

preferred sexuality. It contains no religious bias.15 It is primarily a fair and just

document, and creates a fair and just democratic system. Except in two respects.

There are two problems in our Constitution. The first is the non-recognition of

Indigenous peoples. The second is racial discrimination: our Constitution still

contains provisions which allow governments to discriminate on the basis of race.

Prior to the 1967 referendum, Indigenous peoples were explicitly excluded from

the Constitution. Section 127 prevented Indigenous people from being counted in

the Census. Indigenous people were also excluded from the scope of s 51(xxvi),

the Race Power. The 1967 referendum reversed this exclusion by deleting s 127

and deleting the exclusion in s 51(xxvi).

Ironically, however, the Constitution now makes no mention of Indigenous

peoples whatsoever. As a founding, historical document, our Constitution is

inadequate. Mabo overturned the doctrine of terra nullius in Australian domestic

law. But our Constitution fails to recognize that this land was not empty when

the British arrived. There is no mention of the Indigenous contribution to

Australia’s heritage and history.16

The second problem is that the Constitution contains racially discriminatory

provisions which enable governments to treat Australian citizens differently on

the basis of race. Section 25 contemplates barring races from voting. S 51(xxvi)

gives the Commonwealth the power to pass race-based laws – whether positive or

adverse.17

This allowance and promotion of racial discrimination is at odds with

fundamental tenets of democracy: individual equality before the law, the rule of

law (in that the same rules should apply to each individual regardless of colour or

15 In fact s 116 prohibits the government from imposing a particular religion.

16 See Shireen Morris, ‘Indigenous constitutional recognition, non-discrimination and equality

before the law: why reform is necessary’, (2011) 26(7) Indigenous Law Bulletin 7.

17 S 51(xxvi) gives the Commonwealth the power to pass laws with respect to “the people of any

race for whom it is deemed necessary to make special laws”. In Katinyeri v The Commonwealth

(1998) 198 CLR 337, it was held that this power can probably be used to pass laws for the benefit of

any race, or laws to the detriment of any race.

ethnicity), and the idea that each person’s vote should be equal. The racial

discrimination in our Constitution is an undemocratic error. On the issue of race,

our founding fathers erred.

Their error was based on outdated factual and moral beliefs, now known to be

incorrect. Racial categorizations between human beings, we now know, have no

scientific basis.18 Race should no longer, therefore, have any legal or policy

application. We now understand that there is only one race: the human race.

Most would now agree that treating citizens differently on the basis of race is

unfair. This is why removal of racial discrimination from the Constitution has

strong public support.19

The race-based approach has also been unsuccessful in addressing the problems

we face in Indigenous affairs. This practical failure has had its roots in the

philosophical understandings that underpin the race-based approach. Race is a

colonial concept. Inherent in the idea of race is the notion that some races are

superior and some are inferior. The incorrect notion that Indigenous people

belong to an inferior or incapable race has arguably had a poisonous effect on

Indigenous policy, law and, consequently, Indigenous people.

While in the past there was much adverse discrimination against Indigenous

people on the basis of race, now there is positive discrimination – well

intentioned – but often with adverse results. Cape York Institute’s work in

welfare reform has shown us this all too clearly. The race-based approach has

perpetuated low expectations and undermined personal responsibility.20

Consequently, as many Indigenous leaders have argued, the law and public policy

18 See the Human Genome Project

http://www.ornl.gov/sci/techresources/Human_Genome/elsi/minorities.shtml [accessed

21/3/20123]: “DNA studies do not indicate that separate classifiable subspecies (races) exist within

modern humans. While different genes for physical traits such as skin and hair color can be

identified between individuals, no consistent patterns of genes across the human genome exist to

distinguish one race from another. There also is no genetic basis for divisions of human ethnicity.”

See also Sarah Pritchard, ‘The race power in Section 51(xxvi) of the Constitution’ (2011) 15(2)

Australian Indigenous LawReview 50-51.

19 Patricia Karvelas, ‘Most people want racial discrimination removed from the Constitution’, The

Australian, 11 November 2011; Expert Panel on the Constitutional Recognition of Indigenous

Peoples, Final Report (2012) ‘Recognising Aboriginal and Torres Strait Islander Peoples in the

Constitution’, 82-91, 157.

20 See Marcia Langton, ‘Indigenous exceptionalism and the constitutional race power’, Melbourne

Writers’ Festival, BMW Edge Theatre, Melbourne, 26 August 2012.

often fails to hold Indigenous Australians to the same responsibilities and

expectations as other Australians.21 This attitude does Indigenous people a great

disservice.

We must unequivocally reject the idea that Indigenous people are innately or

biologically disadvantaged. Indigenous people are not an inferior race. Yes,

Indigenous people are for the most part socially and economically disadvantaged

due to past discrimination, dispossession and other contemporary factors. And

yes, we should do everything we can to assist disadvantaged people, black or

white. But we should do so on the basis of individual need – not race.22 A person

is not automatically disadvantaged just because he or she is Indigenous. A person

should be rewarded on their merits, and assisted in their needs. Race, and

Indigeneity, should be irrelevant to matters of public welfare and government

assistance.

We need to move from Indigenous non-recognition to recognition. And we need

to move from a position of racial discrimination in law and public policy, to one

of individual equality before the law.

Reform for recognition means symbolic constitutional recognition of prior and

continuing Indigenous occupation of this land, and recognition that Indigenous

cultures, languages and heritage are Australia’s cultures, languages and heritage –

an important part of our national identity. This is simply a historical truth that

should be stated in our founding document. Prime Minister Tony Abbott once

said that “every Australian needs to feel some kind of mystical bond and union

with every other Australian… to build a nation.”23 Arguably that ‘mystical bond’ is

our shared Indigenous heritage, that most ancient part of our national story that

has for too long been denied.

Our British inheritance is recognised. It has been embodied in the Constitution

since 1901: through the English language in which it is written, through the

structures of democratic government it sets in place, inherited from the English

system of law, and by instating the British monarchy as our Head of State.

21 See Noel Pearson, ‘Our right to take responsibility’, Up from the mission – selected writings (Black

Inc, 2011); Noel Pearson, “White guilt, victimhood and the quest for a radical centre”, (2007)16

Griffith Review.

22 See Nicholas Perpitch, ‘Link welfare to need, not race: Langton’, The Australian, 27 August

2012.

23 David Marr, ‘The Making of Tony Abbott’ (2012) 47 Quarterly Essay.

Australia’s Indigenous heritage should rightly sit alongside these fundamental

British traditions and institutions. It is, after all, our Indigenous heritage, that

gives us that which is unique in the world.

Reform for equality before the law means the racially discriminatory s 25 should

be removed. The Race Power should also be removed and replaced with a new

power allowing governments to pass necessary laws specific to Indigenous affairs,

such as Native Title and Indigenous heritage laws. But the new Indigenous affairs

power should not be used for matters of public welfare or government socioeconomic

assistance. These matters should be addressed not on the basis of

Indigeneity, but on the basis of individual and community need. This distinction

should be made clear in the drafting.

In addition to removing the two racially discriminatory provisions, Australia

should adopt a new constitutional provision prohibiting racial discrimination in

laws and policies and ensuring equality before the law with respect to race,

ethnicity and colour. This is necessary to overturn the racially discriminatory

precedent that has built up since 1901, through legislation, policies and case law.

The Race Power and s 25 established the wrong principle in our Constitution. A

new, correct principle needs to be set in place. Simple removal of discriminatory

provisions is insufficient.

Those on the left have long argued that we should stop the adverse discrimination

against Indigenous people. Those on the right often argue we should stop the

perceived preferential treatment of Indigenous people. The balanced ‘radical

centre’ position,24 and arguably the fair and correct position in a just democracy,

is to eliminate both adverse and preferential treatment on racial grounds.

The most common objection to the propositions I have made for constitutional

reform on the basis of Indigenous recognition and equality before the law, is that

there is a contradiction between the two principles, or that they are separate and

should be dealt with separately. But this in my view is incorrect.

The racial discrimination allowed by our Constitution is inextricably linked to

the Indigenous history we want recognised. So extreme was the discrimination

against Indigenous people, it initially even denied that we existed. This is what

24 See Noel Pearson, ‘Hunt for the radical centre’, The Australian, 21 April 2007.

Indigenous recognition is all about – overturning the fallacies of non-existence

and racial inequality.

There is no contradiction in saying we recognise the importance of the nation’s

unique Indigenous heritage and history, while at the same time confirming that

we are all equal on the basis of our shared and equal Australian citizenship. The

two propositions are complementary. The one entails the other. What’s more,

both propositions are politically necessary.

It is the confirmation that all Australians are equal before the law that legitimises

and makes acceptable the symbolic recognition of Indigenous history and

heritage. It confirms we are not creating a separate category of special treatment

or collapsing into cultural relativism. It confirms that the same rules should apply

to all Australians.

Likewise, it is the symbolic recognition of Indigenous heritage, languages and

cultures, that confirms that the ‘one land, one law’ principle need not dissolve

into mere assimilation and cultural loss. Equality before the law needs to go hand

in hand with a renewed appreciation of the nation’s rich Indigenous traditions

that in our national psyche should carry as much pride as our British traditions

and institutions.

This land was not terra nullius when the British ships arrived.

But recognition should go with equality. This is the yin and the yang. The

amendment proposition needs to have this balance.

Indigenous recognition and equality before the law are correct principles for a

fairer, more reconciled nation. We first need to agree on this. Then, the

challenge will be for the lawyers and drafters to express these principles, carefully

and precisely, in the right constitutional amendments.

Conclusion

Let me say finally to Mr Tony Whitlam who is here this evening on behalf of the

Whitlam family: please pass on to the old man my warmest affection – nay, love –

and convey to him, notwithstanding that my words here tonight could not do his

public service proper justice, some sense of my belief that he is Australia’s

greatest white elder and friend without peer of Indigenous Australians.

Thankyou.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s