Debates around Indigenous affairs and constitutional recognition of Australia’s first peoples have reared their head in the election campaign. This article was originally published in Griffith Review’s January 2016 edition, Fixing the System; it was written in September 2015 before the Referendum Council – which begins its consultations in the coming weeks – was constituted. It is republished below with permission.

Aboriginal affairs – once the subject of innovation in policy and law reform attended to by the routine scrutiny of an informed and inquisitive Fourth Estate – are no more.

Gone is the sophisticated knowledge of the William Stanner, Barrie Dexter and H.C. “Nugget” Coombs academic-technician-bureaucrat and, dare one say it, the Aboriginal and Torres Strait Islander Commission (ATSIC), replete with high-level career public servants of the calibre of trailblazer Pat Turner, who understood the complexity of the community they served – because it was them.

Contemporary policies, erroneously characterised as “nudge” politics, are by and large brutally and unapologetically straitjackets: choking communities to death, removing autonomy and choice from the individual and collective lives of a profoundly unhappy polity.

Public policy no longer requires the imprimatur of the Aboriginal people; Aboriginal participation in the decisions taken about their lives is negligible. It is a distraction, an indulgence even. Desperate pleas for a renewed emphasis on Indigenous design and Indigenous participation is met with the unexamined refrain, “we tried that and it didn’t work”.

A mostly uncritical mainstream media cheers from the sidelines, dutifully promoting prime ministerial remote-community fly-bys as policy and gushingly retweeting images of unnamed natives: state-funded junket as the coming of the light.

The post-ATSIC exodus of Aboriginal people from the public service created a knowledge-and-skills deficit and crippled the quality of advice to government decision-making and outcomes.

This is not to diminish the career service of the Indigenous public servants who continue to specialise in the field; it takes a special kind of person to persevere with dedication and commitment to their mob. And they are true heroes of the movement – for in the place of Aboriginal drivers now preside the all-powerful, all-knowing, risk- and innovation-averse career bureaucrats.

These faceless, unnamed drivers of my people’s destiny shrewdly resist a carefully crafted alternative policy approach of community autonomy, conceived of by eight unempowered Aboriginal communities at the frontline of the failed state that would, to be frank, put them out of a job. How dare Aboriginal people conceive of solutions to their own problems?

This is the harsh and unavoidable truth of liberal democratic governance for Indigenous peoples. Contemporary liberal democracies are minimalist democracies, whereby citizen participation is primarily funnelled through the ballot box at periodic, multi-party elections. This means that the procedural aspect of democratic governance drives legitimacy, and less scrutiny is paid to the quality of the decision-making between ballot boxes.

For small or powerless groups, particularly culturally distinct or ethnic groups, this poses an insuperable challenge. It is sheer numbers that can move the political leaders and policy makers to act. Might is right.

The issue of fungibility of native title or compensation for state theft of wages while living under compulsory racial segregation laws – these things do not move a nation.

Self-determination falls by the wayside

Most Western and non-Western liberal democracies have, over the years, found ways to ameliorate the harsh tendencies of ballot box-induced majoritarianism on their Indigenous populations.

These innovations are many and varied, and the best practices are captured in the United Nations Declaration on the Rights of Indigenous Peoples. Yet, while the world was adopting them as the gold standard for Indigenous populations in the 2007 General Assembly in New York, Australia was abandoning them. Completely.

Most destructively, Australia has rejected self-determination – freedom, agency, choice, autonomy, dignity – as being fundamental to Indigenous humanness and development. This is at odds with the evidence base on economic development collated each year at the UN’s Permanent Forum on Indigenous Issues. My experience at the UN has been that member countries with significant Indigenous populations have a threshold of self-determination above which Australia does not rise.

The rejection of the right to self-determination does not attract the scrutiny it should. The term itself is pilloried – by the non-technicians who control the Aboriginal domain – as a wishy-washy, pie-in-the-sky, lefty concept. This is despite its lengthy pedigree in Western liberal philosophy and the Enlightenment, and in the UN Charter and its three primary human rights covenants – to all of which Australia was not only a signatory, but a leading drafter.

The Australian polity – this does not include Indigenous peoples – has proven incredibly trusting and unquestioning of the government’s rejection of the value of Aboriginal participation in decision-making. Self-determination has been conflated with ATSIC.

Mind you, there is next to no academic analysis or evidence base of what ATSIC achieved and did not achieve and whether it actually failed. It is mostly anecdote. Importantly, there is virtually no interrogation of whether ATSIC, in the minds of Indigenous Australians, was self-determination.

The extension of the right to self-determination from the individual to the collective transformed the concept in international law and was eventually adopted, by consensus, in the UN General Assembly. UN member countries now agree – based on evidence and what their Indigenous populations were telling them – that a people’s economic, political, social and cultural future can and must be jointly charted by the individuals who belong to that group.

This is precisely what Aboriginal people have been conveying to the state. The Aboriginal polity – if the Hansard transcripts of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples count for anything – is telling the democratic representatives that they have no voice. They feel like they have no control over their lives.

This testimony is not, mind you, coming from a committee on dislocation or dispossession or disempowerment of First Peoples. Ironically, it is being filtered through a process for the “recognition” of Indigenous peoples in the Australian Constitution.

The joint select committee, created to conduct a second round of deliberations to build on the work of an initial round that came via a prime ministerial expert panel, visited mostly remote and regional communities during 2014.

Despite being peppered with technical, legal questions about section this and subsection that, the witnesses spoke of the realities of life in their communities using the language of hopelessness, abandonment and despair.

These transcripts frequently brought me to tears. Yet their views – their perceptions of the unfreedom that defines their existence – was not adequately reflected in the reports and not captured at all in the mainstream media. How can this be of no concern to anyone in positions of power? What kind of system blithely ignores these perceptions?

What’s informing the recognition debate?

To that end, the advent of social media has been an important dissemination point for distinct Indigenous viewpoints.

The SOS Blak Australia campaign created to protest the closure of remote communities in Western Australia was spearheaded through social media. It galvanised activism in many cities across Australia and did the only thing a polity with no power can do to attract the attention of a disinterested nation: disrupt.

Social media has enabled communities to express opinions on recognition and broader public policy. It captured the overwhelming rejection of the campaign for recognition, and the growing resistance to being “recognised” by the settler state.

Oblivious to this or not, the mainstream media, by and large, uncritically report on referendum momentum and mostly obsess over any chinks in the bipartisan order of things. The subjects of recognition are all but erased from the process.

The recognition project is a perfect example of a broken system; the dissonance between the policy on the ground and the preference of the political elite for the mystical and magical over the hard-headed. Aboriginal activism for amending the Constitution – to address the potentially discriminatory effect of the “race power” as amended in the 1967 referendum – has now been reduced to simply removing the word “race” from the text because it is odious or a construct.

It is true that “race” is a construct. But Aboriginal advocacy for reform (not recognition) has its genesis in a much more complex legal problem. Less discussed is this: replacing “race” with the word “culture” or “Aboriginal and Torres Strait Islander peoples” in the absence of some additional discipline on federal power presents us with precisely the same situation as we have now. The power can still enable racially discriminatory laws.

This is why the expert panel recommended deletion and replacement of the race power and a racial non-discrimination clause: to provide some additional safeguards for Indigenous peoples because parliament does not provide it and the media no longer provides it – and the judiciary cannot provide it without the explicit approval of parliament.

The “how-low-can-we-go” approach to constitutional reform means it is referendum statistics driving reform, not an actual problem that requires a solution.

Recognition mis-steps

The recognition process, in and of itself, has been long and drawn out.

We’ve had an expert panel – a year-long deliberative process in 2011 – an Act of Recognition, a joint select committee that handed down an interim report in July 2014, a progress report in October 2014 and a final report in June 2015, and another contemporaneous process of review headed by John Anderson, who delivered a final report of the ATSI Act of Recognition Review Panel in September 2014.

Add to the mix, for the first time in Australia’s disastrous referendum history, a public relations campaign to lobby for a “Yes” vote, despite there being no reform to vote for. In the absence of an actual amendment, the campaign arm has had to prosecute arguments in favour of a referendum based on some of the simplistic messages I have described. It has no other choice.

It was predictable that the campaign would attract the ire of an impecunious Aboriginal sector, gutted by ruthless funding cuts. A recognise gala saw then-prime minister Tony Abbott commit more taxpayer funding to the campaign.

This was contemporaneous with the government’s marquee policy, the Indigenous Advancement Strategy, which had the brutal impact of laying people off, while organisations lost frontline services, programs and policies ranging from women’s and girls’ empowerment – on-the-ground, fit-for-purpose domestic violence measures – to Aboriginal cultural events.

The campaign has galvanised a resistance movement. Still, political leaders, commentators and policymakers seem blithely unaware. On a fundamental level they need to acknowledge that a model is a necessary prerequisite to Indigenous people forming a reasonable opinion on the matter.

In response to many of these concerns, in July 2015 Abbott and Opposition Leader Bill Shorten met with 40 Indigenous people at Kirribilli House to discuss a way forward.

We were not told who was on the invitation list as it was “top secret”. No agenda was provided. The purpose of the meeting was to consider the best approach to the proposed referendum and key principles for change and a process. The Indigenous leaders spent all Saturday and Sunday preparing.

It is important, in understanding the Indigenous approach to recognition, to know that Indigenous peoples view any forthcoming referendum on a trajectory starting with Captain James Cook and Governor Arthur Phillip’s conciliation phase, then the era of frontier killings, compulsory racial segregation or “protection”, assimilation, then self-determination and back to the current day, which Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda has described as “protection-era-like policy”.

The recognition project is occurring against this backdrop.

On the day of the historic meeting, people shared their thoughts. Forty people in three hours. No structure. We requested Aboriginal conventions. Our mob were lost, we said. Resistance was strong, we said. The press release indicated that although they seemed to be listening, they did not hear.

How process has become substance

Thus, prior to the change of prime minister we were heading down a road by which Aboriginal and Torres Strait Islander communities would host a series of conventions culminating in a final convention at Uluru (subject to traditional owners’ agreement). 150 concurrent town hall meetings would be conducted across Australia.

Noel Pearson’s account of that meeting at Kirribilli House was entirely accurate:

Set-piece photo opportunities, choreographed handshaking, perfectly executed meetings, commissioning and receiving official reports … The semblance of public conversation, democracy and debate: the reality of pre-prepared statements and pre-determined outcomes has long been part of politics.

But process today is not like process yesterday. We are now in the era of the reification of process. Process entirely disconnected from the real policy and political substance. Indeed the process itself has become the substance.

That “process has become the substance” is an apt way to describe the outcome of the parliamentary steps. The joint select committee produced three reports, all variations of the first expert panel’s recommendations. The testimony and submissions show overwhelming support for a racial non-discrimination clause reflecting the identical public sentiment that the expert panel found.

Of the expert panel recommendations in 2011, only one proposal polled by Newspoll was high enough to succeed at a referendum: Section 116A of the Constitution, the racial non-discrimination clause. Fixing the race power, adding settler “recognition” – these recommendations would not withstand, we were told, a “No” campaign.

The drawn-out process of recognition – four processes in five years – is informed by the political paralysis of a rights-reluctant culture – to avoid the difficult task of telling a community that are supportive of a racial non-discrimination clause that, despite the overwhelming support for it, it is a captain’s call.

This is dissonance between the political class and the people. This is not uncommon in representative democracy but is discomforting enough to drag out, setting up process after process until, finally, someone decides to dump it. Government outsourcing leadership.

In some ways, this was meant to be the task of a joint select committee: to dump the “back-door bill of rights”. Except it couldn’t, because there is overwhelming community support for it. The arguments against it are mostly political, not legal. On this, Pearson has been scathing:

A few days after the Kirribilli meeting, Ken Wyatt was in the Australian admitting that a non-discrimination clause is unlikely to succeed because it is opposed in his own party. Tabled with hugs and congratulations, the joint select committee’s report was dead within three weeks.

The scope of the options on the table had not been narrowed at the Kirribilli meeting. And yet by the end of the week, the ink not yet dried on the committee’s report, already it was being dismissed as unviable by its primary author.

The reaction? Nothing. The inexorable caravan of process moved on as though nothing happened. Never mind a parliamentary committee recommends something one week and its chairman rejects it three weeks later. Clearly Wyatt felt it was more important to have a unanimous report than an honest one. The perception of proper process was paramount once again.

Of course there needs to be process. But there must be public engagement and debate. We either win on the strength of our ideas and arguments, with integrity, truth and rigorous debate, or we do not win at all. From here, either the recognition process is managed to a destination worked out by the pollsters and official “reconciliationistas”, or they take a back seat until the policy and political dialogue is properly had.


Listening but not hearing

The Aboriginal resistance to recognition can be explained in a number of ways.

There are no Aboriginal drivers and the rhetoric of recognition jars with the draconian policies and decimation of a sector wrought by funding cuts. Also, worryingly, there is a near absence of pragmatic, hard-headed debate. Where is the disagreement?

As Shadow Attorney-General Mark Dreyfus correctly said of referendums, there should be bipartisan agreement on the final proposal but it does not mean there can’t be constructive tensions on the journey there.

The fear of a contest of ideas is at most a broken system and at least a little creepy. There is, however, loads of sentimental gush that has raised the suspicion of a politically savvy mob accustomed to being on the arse-end of democratic compromise.

To be fair, the constitutional calculus that only eight out of 44 referendums to amend the Constitution since 1901 have been successful is intimidating. Therefore, the bottom line for those driving the recognition agenda is that of the eight successful referendums each had bipartisan support.

Thus it is this that is repeated ad nauseam and has been the only driver of public debate. Not what is the best option for reform? Or, what is legally and technically sound? Not even, what do Aboriginal and Torres Strait Islander people want?

These questions are not asked because the system has gotten used to forging ahead without us. Indigenous views are not a necessary precondition to constitutional recognition. That is the kind of country we have become.

The routinely cited “eight from 44” conundrum means huge pressure will be placed on the mob to accept something they don’t want, for fear of disappointing the settlers.

This emotional blackmail is embedded in the statements I hear: something is better than nothing; symbolism is better than nothing; go for something now and get what you want in 20 years; go for minimalism and bargain for more off the euphoria of a win; if you walk away you risk race relations; if it fails it risks race relations; symbolism will close the gap; symbolism will improve health and wellbeing; recognition will complete the Constitution; recognition will create a unified and reconciled nation.

Indigenous leader June Oscar has called on Malcolm Turnbull to abandon Tony Abbott’s streamlined Indigenous funding, describing it as a disastrous policy that had brought many child welfare and family centres to the brink of closure.

Former Aboriginal affairs minister Fred Chaney warns that remote parts of Australia “increasingly resemble a failed state”. Gooda has described the funding and policy situation:

… we are now witnessing one of the largest scale “upheavals” of Aboriginal and Torres Strait Islander affairs.

In his 2014 Annual ANU Reconciliation Lecture, Chaney argued that the recognition project will be hampered by the Commonwealth policy approach. There is a problem with the narrative of “recognition”, apropos of contemporary chaotic and discursive public policy across the federation. The main message politicians are getting is “it’s a distraction”. They are listening but they are not hearing.


Moving ahead without support

Why forge ahead? Why not take stock, show leadership and slow things down? Why present a referendum as a forgone conclusion and then, if it does not proceed, frame it as a failure or disaster and search for those to blame?

One of reasons may be that political leaders, participants and commentators, not Indigenous peoples, are unwittingly or begrudgingly on this journey. As prime minister, Julia Gillard created an expert panel because that was part of the agreement with the Greens and independent Rob Oakeshott to gain their support in a hung parliament. They asked her to operationalise the multi-party support for constitutional recognition.

Gillard never responded to the expert panel, and so Abbott inherited it. He had a different problem. With his carefully crafted image as the prime minister for Indigenous affairs he found it hard to manoeuvre. Of all the inert policy areas he oversaw as prime minister, this was the one journalists routinely singled out as a success. He had no choice but to give the appearance of momentum despite the fact he knew there was overwhelming opposition in his partyroom and a nascent Aboriginal resistance movement.

The word “recognition” has also been problematic. It has given both succour and grief to politicians. For reluctant politicians, the language has helped because it presupposes something easy to do, a no-brainer that will attract bipartisanship and public support – rather like the use of the word “reconciliation” a generation ago.

The term is simultaneously delivering grief because it is commonly used in political theory to frame minorities’ claims for structural accommodation. Charles Taylor famously wrote an essay called The Politics of Recognition. Australia’s Elizabeth Povinelli has writtenexceptionally and presciently on this.

There is voluminous literature on “recognition”. Legally it must be viewed on a spectrum.

There is weak recognition: a few words of recognition of a fact, preoccupation, dispossession and survival.

There is strong recognition: treaties, constitutional recognition of treaty rights or Aboriginal rights or Indigenous parliaments. In its most minimalist symbolic incarnation it has never been a significant part of Aboriginal advocacy.

The preconceived sentiment that this iteration of recognition means minimalism is most likely a legacy of John Howard and the 1999 republic referendum. In that referendum, First Peoples cultures were mentioned in the proposed preamble, which Howard crafted first with Les Murray, and then with Aboriginal senator Aden Ridgeway. It is a concept Howard revived just before the 2007 federal election, months after his emergency intervention in the Northern Territory.

Too often overlooked in the revisionism that accompanies the transparently conservative-pandering rhetoric – recognition is Howard’s idea so please vote Yes! – is that the democratically elected members of ATSIC and many other land-council chiefs and leaders did not support the preamble. They described it as offensive and inaccurate. Howard moved ahead anyway, despite overwhelming disapproval.

This is important: the state moved ahead anyway, without the approval of the subjects of the recognition. Will this happen again?


Involving the communities

In the absence of any effective, legitimate democratic voice or body, the Indigenous affairs space is filled with freelancers. This explains Pearson’s proposal for a parliamentary advisory body and Tony McAvoy’s proposal for a First Nations Assembly.

These proposals are designed to bring leadership authority, decision-making and consultation back to the polities who constitute Aboriginal and Torres Strait Islander communities nationally and are, for the most part, land-based groups. They have authority.

Put simply, decisions about the many and varied discrete communities across Australia should be made by those communities, the Indigenous individuals who reside there, in the decision-making structures that they trust or desire.

Pearson’s proposal has been drafted to accommodate conservative objections to the racial non-discrimination clause. In many ways, both proposals are two sides of the same coin. One is to provide a check and balance on majoritarian parliament that can never truly represent the interests of a distinct cultural polity. This is not to say liberal democracy is bad.

It is to accept that, like most liberal democracies, we can do better. To accept this, there needs to be some mechanisms built into the legal and political system that provide greater scrutiny of the laws and policies considered and passed between the ballot box. A few more safeguards.

This is uncontroversial. Our common-law cousins New Zealand, Canada and the US do this well.


What form can recognition take?

University of Melbourne doctoral student and researcher Dylan Lino, who is based at Harvard, argues:

We must be careful to acknowledge that while symbolism – if that is what it is – is nice and may have some salutary benefits, the pursuit of wholly symbolic recognition in written constitutions often neglects valid grievances about how power is wielded by the state over the group in question.

Redressing this legitimate grievance is what the expert panel’s Section 116A and the proposal for a parliamentary advisory body are trying to do. They are clever, widely consulted, carefully constructed ideas for structural reform from the Aboriginal polity.

And yet, even though Pearson’s proposal responds to all the concerns about a racial non-discrimination clause, those with political power still say no. My suspicion, based on years of meeting politicians who mostly have not read the expert panel report or the three joint select committee reports, is that they are not interested in reform. End of story.

Why else would you pursue a project favouring reform at its most limited, and therefore likely to have a negligible impact on the very measures you are monitoring to close the gap? Is the reason simply that no-one is reading, no-one is paying attention, that no-one really cares?

For Indigenous Australians the system is broken. When self-determination was abandoned it was replaced by a seemingly benign, upbeat and eternally co-operative bipartisanship. But bipartisanship is deceptively simple. Intuitively it makes sense, but it does not always sit well in a parliamentary liberal democracy whose institutions are based on the mediation of disagreement.

And when a policy area involves 2% of 23 million people, it becomes a significant problem for the scrutiny of decisions between the ballot box.

This is why the two primary proposals for constitutional recognition – an amendment to entrench the principle of racial non-discrimination in the Constitution and the proposal for a Indigenous parliamentary advisory body – are so important. They are rigorous proposals that have emerged from extensive consultation over five years.

Section 116A is to provide a discipline on parliamentary power. And when the expert panel discussed with communities that it might enable intervention-type laws or it might not, the overwhelming response was they trusted the High Court as an independent institution to consider the facts fairly and make a decision without the politics. As Asmi Wood from the ANU has argued, Aboriginal people don’t trust parliament.

Take the expert panel’s recommendations on Section 51A, to amend the “race power”. The amendment was drafted to address the uncertainty of its racially discriminatory pedigree, as postulated by the High Court in the Hindmarsh Island Kartinyeri judgment, by placing within the section preambular recognition language that would do two things: constitute “recognition” and provide some (non-binding) guidance to the High Court in its interpretation.

This was a clever solution to a complex problem, conceived of by some of the best constitutional minds at the NSW Bar and then road-tested with the legal profession in consultations over three years.

Yet, when we spoke to Abbott four years after the work of the expert panel, he suggested a preference for three lines at the beginning of the Constitution: an Indigenous past, British heritage and multicultural character. It was clear he had not been briefed on the expert panel’s report and was unaware that constitutional thinking had advanced since the 1999 referendum.

The legal consensus is now that you cannot simply place words at the beginning of the Australian part of the Constitution. It would put a gloss on each and every provision of the text. A non-legal effect clause or non-justiciable clause, as Howard anticipated, provides no relief because, again, as the expert panel’s legal analysis shows, the High Court is likely to read down that clause.

So why, five years after the expert panel handed down its report, have so few of the decision-makers read it? Why are people still suggesting recognition in a preamble when it carries legal risk?

What now?

The soothing infantilism of minimalist recognition declarations intrigue me. As does the reification of process, as Pearson puts it.

Why do Aboriginal people continue to pursue substantive recognition when the perfunctory constitutional calculus trotted out renders substantive amendment insurmountable? Aboriginal people can read. We can retain information. We do not need to be lectured to by people who find it virtually impossible to change their own Constitution.

Put simply, the grandiose pretension of symbolism is not enough. It is fudging the art of law reform. It is naive of Australian politics. It would be a principled decision of the mob to decline the offer of recognition. This is a decision for the Aboriginal people through the conventions.

I have reflected on this, the decision not to proceed if the reform is too weak, because it will predictably cast a shadow or reveal a bleakness that the public sector and the Reconciliation Action Plan-heavy corporate sector eschews.

They seek positivity and positive measures and tales of Indigenous entrepreneurialism: individuals done good. They are useful anecdotes to the tribalism of the collective. Time and time again, we have heard that the Australian public wants happy stories, good stories, positive stories.

When I was reading some of the overbearing critiques of Ta-Nehisi Coates’ Between the World and Me, I noticed this anxiety for positivity too: Where is the hope, they excoriated him.

A useful Twitter tip saw me scampering off to read Old Testament scholar Walter Brueggemann, who has written on this contemporary condition. Brueggemann taught me that it is not we, the First Peoples, who bear the responsibility of providing hope to white Australia. A functioning liberal democracy should be providing hope to all its citizens.

On this account, Australia has failed the First Peoples. In the face of indifference, hope arises from within ourselves; perversely, it is the resistance to recognition that springs hope. Brueggemann says:

Hope, on the one hand, is an absurdity too embarrassing to speak about, for it flies in the face of all those claims we have been told are facts. Hope is the refusal to accept the reading of reality which is the majority opinion; and one does that only at great political and existential risk.

On the other hand, hope is subversive, for it limits the grandiose pretension of the present, daring to announce that the present to which we have all made commitments is now called into question.

Daring to announce that the present to which we have all made commitments is now called into question. Many leaders I have worked with have said that if they need to they will leave it to another generation. The protracted recognition project has antagonised a politically astute polity fluent in the betrayals of political leaders more interested, as Chaney said, in re-election than they are in reform.

Whatever the result of the Aboriginal conventions, I am sensing a renewal of hope in the community because for the first time in a long time we have the opportunity to come together, to talk, to laugh, to fight, to sing. In the meantime you can continue on without us, as you always have.

You can read a longer version of this article and others from the Griffith Review’s Fixing the System edition here.

Megan Davis is Professor of Law, UNSW.

This article is republished from The Conversation.