‘And remind them that we have robbed them?’

Professor Megan Davis speaks on re-imagining a nation:
Indigenous recognition, constitutional change and a future Australian republic

Monday 22 October 2018

In partnership with the Museum of Australian Democracy, Canberra

“The Uluru Statement from the Heart is an invitation to the Australian people. It’s an important statement that will kickstart a reform so that perhaps finally after decades and decades and decades my people, our people, will find their rightful place in our own country.”

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Professor Megan Davis, a Cobble Cobble Aboriginal woman from the Barrungam nation in south-west Queensland, is the Pro Vice-Chancellor (Indigenous) and a Professor of Law at the University of New South Wales, specialising in public law and public international law.

As a member of the Referendum Council and the Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution, Megan played a vital role in the process that culminated in the historic Uluru Statement from the Heart. She has served as an expert member of the United Nations Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples, and is a Fellow of the Australian Academy of Law and the Australian Academy of Social Sciences as well as a Commissioner on the Australian Rugby League Commission. She was recognised in 2018 as the winner of the Australian Financial Review’s 100 Women of Influence Awards.

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Some extracts from the speech

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The general thrust of my argument is that these two reform proposals [recognition and an Australian republic] are connected, and to move to a republic without addressing unfinished business would be, in excluding Indigenous peoples, unjust. It would also be contrary to the republican conception of democracy – being inclusive of citizenry and, as Philip Pettit might say, giving people ‘channels of influence that can join to form a river of popular control’. [1]

The twin pillars of reconciliation are truth and justice. Both pillars could be irretrievably damaged if such an injustice underpinned the sovereignty of a new republican state. This is no way to herald a new expression of popular sovereignty.

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At the 2015 Kirribilli meeting [with the prime minister and leader of the opposition], our leadership stated the following:

‘[Any] reform must involve substantive changes to the Australian Constitution. It must lay the foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future. A minimalist approach – that provides preambular recognition, removes section 25 and moderates the race power, section 51(xxvi) – does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.’ [2]

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Without structural reform for Indigenous peoples an Australian head of state is, to put it crudely, putting lipstick on a pig. That is to say, on the morning we wake up after a successful referendum on a republic, the public institutions remain the same. Nothing will have changed in terms of power relations.

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The most important work of the Expert Panel [established by Julia Gillard in 2011] was to seek formal legal advice on the status of Aboriginal sovereignty in the Australian democratic system – in the Australian Constitution. This advice stated that:

the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples. [3]

The Constitutional position is this:

recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. [4]

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As the advice to the Expert Panel stated, sovereignty was not passed from the Aboriginal people through any significant legal act: the British did not ask permission to settle, Aboriginal people did not consent and no one ceded. [5]

This is the source of the disquiet. This is the grievance that must be addressed.

Of course, the further we are from 1788, the less inclined the state is to address this and that’s why we talk about agreements and treaties, because it’s those agreements that give Aboriginal and Torres Strait Islander peoples as the First Peoples of this country, a form of legitimacy in public institutions, in public law, in public debate. We were one of the few Commonwealth countries not to enter into a treaty and we have never gained that public legitimacy as a consequence.

That is part of what Uluru is trying to arrest.

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The Uluru Statement from the Heart was issued to the Australian people. It was not issued to politicians and it was not issued to parliamentarians. We uninvited them to the Rock.

We deliberately issued the Uluru Statement to the Australian people, because it is we who can change the Constitution. The Constitution is built to change. The amendment mechanism placed into the Constitution was for us.

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It sounds strange emphasizing this exclusion of politicians, given that the Oration is for Henry Parkes, but I do see great synergies with him …

His frustration at the amount of time it takes to explain to people law reform proposals. The length of time that it takes to understand vision.

The most difficult thing that happened in the dialogues was walking into the regions and into communities – communities that had been devastated by policies like the Indigenous Advancement Strategy. They did not want to talk to us. It was not an easy thing to do. It was so difficult that we had to build in an extra day to manage the anger.

We had to ask people to suspend their disbelief that the country can’t change, and that’s a difficult thing to do out there in the regions. We had to say to people, law reform is about vision and you have to imagine that Australia can be a better place. You have to imagine a reform and you have to imagine that we can achieve it.

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I was reading an article on Henry Parkes in preparation for this speech, where he’s preparing for the dedication of Centennial Park. He’s preparing this grand banquet for leading citizens, which I think means wealthy landed citizens, paid for by the government, and when he was asked what he would do for the poor and needy, Sir Henry offered to distribute food parcels on the day. And a radical, Thomas Walker, interjected and said, ‘Then we ought to do something for the Aborigines’, to which Parkes replied, ‘And remind them that we have robbed them?’

I cannot but think he would say the same thing here. To have a referendum on a republic before addressing Indigenous recognition will mean continuing the normative framework that is the torment of our powerlessness. When I read suggestions such as ideas for Aboriginal words for a head of state or Aboriginal motifs or symbols on the flag, I think: is this the most that this country can muster for its First Peoples? It’s patronising.

A constitutionally enshrined voice to the Parliament is in fact a very republican proposal – a very democratic proposal aimed at enhancing Aboriginal and Torres Strait Islander participation in democratic decision-making. It is a model of political empowerment. And not only is it utterly consistent with our democratic system and Constitution, but it is consistent with republican ideals.

Moreover the process that led to the Uluru outcomes was a deliberative decision-making process that was at its core republican. It sought to give the voiceless a voice and it sought to minimize the influence and dominance of government and elites in the process.

To have a republic before addressing unfinished business is to taunt. In the words of Henry Parkes, it would be to remind them that we have robbed them.

I was going to end on that depressing note, but I do have one positive thing to leave you with. When I was sitting in the cab coming up here, I was reflecting on the marvellous Tenterfield Oration and how it triggered a most marvellous process that led to the democratic system that we have today.

I can’t help but think that maybe this is what the Uluru Statement from the Heart is: it is an invitation to the Australian people. It’s an important statement that will kickstart a reform so that perhaps finally after decades and decades and decades my people, our people, will find their rightful place in our own country.”

 

[1] On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge University Press, 2012

[2] Final Report of the Referendum Council (Canberra, June 2017), Appendix G.

[3] Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander People in the Constitution: Report of the Expert Panel (Canberra, 2012) p. 212

[4] ibid p. 212

[5] ibid p. 22

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