When chairing the 2009 National Human Rights Consultation, I arrived in Kalgoorlie, Western Australia for a community consultation accompanied by lawyers and secretariat staff from the Commonwealth Attorney-General’s Department. We were to hold a community consultation on human rights at the race track on the afternoon of 12 May 2009. That morning we learnt that many people were gathered at the local courthouse for the resumed coronial inquiry into the death of Ian Ward who had died of heartstroke in the Kalgoorlie Hospital on 27 January 2008. I thought it best that we visit the court in the morning to get a sense of the human rights issues occupying the local community. I insisted that all members of the secretariat keep out of the public eye. On arrival, we encountered an Aboriginal protest outside the courthouse. There was a bevy of media on hand including the ABC 4 Corners crew.
Walking towards the courthouse, I heard a cry, ‘Hey, Father Frank, over here! You’ve got to support us mob.’ Looking around I saw Ben Taylor, an old Aboriginal friend from Perth whom I had long known in the local Aboriginal Catholic Ministry. He was often accompanying Fr Bryan Tiernan on visits to Aborigines in jail and to Aboriginal families in need around Perth. I was torn. What should I do? I was chairing a national consultation at the request of the Commonwealth Government. I did not want to politicise our presence in town. And I did not want to end up on television or in the newspapers in relation to a much publicised coronial inquiry I knew little about. But then again, I did not want to abandon Ben and his colleagues in their hour of need. I walked across to the group of grieving relatives who were surrounded by protesters including Ben. They all stood in front of an Aboriginal flag. Some were crying out for justice for their deceased loved one. Ben was holding a simple placard which read, ‘White Australia has a black history’. I stood with the group, in silence, in solidarity. I then accompanied Ben into the back of the courtroom where we heard the appalling testimony about the last hours of Ian Ward, a respected Aboriginal community leader, an artist, and a traditional owner. He had been picked up for drink driving in Laverton on Australia Day. He was denied bail. He was being transported into Kalgoorlie in the back pod of a prison vehicle. Alistair Hope, the State Coroner found:
The deceased was transported in the vehicle from Laverton to Kalgoorlie, a distance of approximately 360 kilometres. The deceased was taken on a journey of approximately 3 hours and 45 minutes on an extremely hot day with the outside temperatures being over 40 degrees centigrade.
The air conditioning for the pod was not working. There was very little ventilation in the pod. It had no windows and only very limited airflow.
The Coroner was to find that ‘the deceased suffered a terrible death while in custody which was wholly unnecessary and avoidable’. He found that ‘the quality of the supervision, treatment and care of the deceased in the hours before his death was disgracefully bad’. He agreed with the prison administrator that the vehicle ‘was not fit for humans to be transported in’ and that the use of the pod for long distance travel was inhumane. Ian Ward died because of the inhumane way in which he had been transported in suffocating heat.
After hearing some of this evidence, I and my secretariat proceeded to the racetrack for our community consultation on human rights. It was a tame meeting, carrying none of the pathos, anger or disgust of the morning’s coronial inquiry. Next morning, I flew from Kalgoorlie to Perth. Next to me sat a lady reading her morning newspaper featuring a photo of the Aboriginal protest outside the courthouse. There was an unmistakable 6’4” white male with them – Fr Frank Brennan. I hoped this would not jeopardise our inquiry. I was pleased to have stood in solidarity with the grieving Aboriginal protesters at the request of my friend Ben. What else could I do? A photo of the protest features on the cover of my new book Amplifying That Still, Small Voice, the same photo judged unacceptable for publication in the report of the National Human Rights Consultation.
This evening, as part of the Graeme Clark Research Institute Public Lecture Series here at the Tabor Centre in Adelaide, I have been asked to address the topic: ‘Speaking for Others in the Public Square’. When asked, I will speak for others. But in the Australian public square, that is not usually the situation. As in this photo, people or groups usually speak for themselves. However as a public advocate, I sometimes stand with them, accompanying them and speaking so that they might be heard. I speak so that others might speak truth to power, and so that others who are powerless might have an enhanced capacity and opportunity to influence outcomes. It’s not so much about speaking FOR others; it’s more about speaking so that the space might be created and the opportunity given for those others to speak AND TO BE HEARD and to be treated seriously by the decision makers including the citizenry who vote in elections and at constitutional referenda. It’s also about trying to create realistic parameters within which public debate might occur maximising the prospect of positive outcomes especially for those whose interests are not the same as those of the majority and of the powerful.
Being an advocate in the public square can be a difficult issue for me as a non-indigenous Australian when deciding what, if anything, I should say publicly about the constitutional recognition of Indigenous Australians. I have addressed the issue of constitutional recognition in considerable detail in my other new book, No Small Change. No sooner had I published this book than the respected Aboriginal leader and scholar Marcia Langton when delivering the Lowitja O’Donoghue Oration here in Adelaide declaimed, ‘Brennan calls himself an advocate for Indigenous rights, yet he supports no substantive reform.’ She claimed that my proposal for constitutional change was ‘dismissive and disrespectful of decades of Indigenous advocacy for serious constitutional reform’. She urged that people support Noel Pearson’s proposal for constitutional change including a provision in the Constitution setting up an indigenous council to provide advice to the Parliament.
Last Monday evening on the ABC Q&A Noel Pearson further outlined his model which includes ‘a body in the Constitution that would enable indigenous people to have a voice to the parliament, to provide advice and the views of indigenous Australians’. He told his TV audience, ‘This is an extremely important idea and it would have great practical benefit to indigenous Australians in dealing with the executive Government of Australia and the parliament.’ He thought this ‘nationally recognised constitutional body would have a modest but profound role in providing counsel to our lawmakers’.
From the outset, I have endorsed in principle Noel Pearson’s proposed body. I will continue to support it. However, I have said that immediate inclusion of such a body in the Constitution would be a mistake and would be unachievable at referendum. In terms of the pragmatic politics, there is the threshold issue of whether the Australian public which has not voted in a successful referendum since 1977 (with the result that no voter aged under 56 years has voted in a successful referendum) would vote in favour of including ANY BODY WHATEVER in the Constitution. Think for example of a proposal to include the successful Productivity Commission in the Constitution so that its advice to Parliament might be more solemnly heeded. There is no way the Australian public would vote for the inclusion of any body in the Constitution unless that body was first proved to work well and unless it was then thought to enjoy enhanced outcomes by virtue of constitutional recognition. You might consider the perennial debates about constitutional recognition of local government.
In terms of principle, there is then the issue of whether anyone could responsibly recommend to the Australian public the inclusion of an untested Indigenous body in light of the poor record of all previous such bodies. In the 1970s, we had the National Aboriginal Consultative Committee (NACC). In the 1980s, we had the National Aboriginal Conference (NAC). In the 1990s, we had the Aboriginal and Torres Strait Islander Commission (ATSIC). They were all bodies which held the promise of being able to provide government and the sovereign Parliament with a one-stop shop for indigenous consultation. They all fell over, in part because the national Indigenous voice lost touch with local Indigenous needs and aspirations.
It would be prudent first to set up Noel Pearson’s proposed body by legislation, road-test it, and refine it. If it is found to work, and by that I mean, if it is found to enjoy the confidence and support of local indigenous communities for (say) five years, then, and only then, would you try to put it in the Constitution. To attempt to put it in the Constitution untested would be folly. Just ask the critics of the NACC, the NAC, and ATSIC. I am further fortified in this view because Mr Pearson’s proposal seems to stand separate and apart from the Congress of Australia’s First Peoples which is the present experiment in national Indigenous representation and consultation.
Forty indigenous leaders are preparing for a meeting with the Prime Minister on 6 July 2015. Presently they are facing an invidious choice of three options which are on the table: largely symbolic change, no change at all, and Noel Pearson’s untried, untested model of Indigenous representation at the national level.
The symbolic change would include acknowledgement in the Constitution of Aboriginal prior occupancy of the land, their continuing relationships with traditional lands and waters, and their ongoing traditions, heritage and cultures. There would also be a reworked provision giving the Commonwealth Parliament power to make laws with respect to the very things acknowledged. The two provisions in the Constitution containing the outdated term ‘race’ could be removed. In the lead up to the referendum, the Parliament could legislate for a statutory Indigenous advisory body meshed in some way with the existing Senate committee structures of the Parliament.
If there is to be no change to the Constitution during the life of the next parliament, the Constitution will continue to use the term ‘race’ and Aborigines and Torres Strait Islanders, their history, their heritage, and their futures will not even be mentioned in the Constitution.
If the Indigenous leaders opt for a referendum aimed at placing an Indigenous advisory body immediately in the Constitution, they face the near certainty that the referendum will be lost because the public has little understanding of how the body will work, how it will make a difference, and how it will be assured a future different from the NACC, the NAC and ATSIC. Ex-Prime Minister John Howard, and respected Aboriginal leaders like Tom Calma and Warren Mundine are already on the public record expressing strong reservations about putting such a body straight into the Constitution untested. There is no way that Tony Abbott as prime minister will take to referendum any proposal opposed by such a grouping.
Perhaps another option will result from the leaders’ meeting with the PM. There is also the report to come from the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. It’s times like these that I am grateful not to be an Indigenous leader carrying such heavy burdens of responsibility for contemporary law and policy making which can make or break the future of Indigenous identity and belonging in this land. I still think it important to speak up in the public square, attentive to the strong criticisms of Indigenous leaders like Marcia Langton, trying to articulate what is achievable and workable for constitutional recognition of Indigenous Australians. I don’t speak for Indigenous Australians. But I will continue to speak in the hope that our Constitution can be amended and updated providing due recognition and respect for them. Hopefully I can do so respectfully with Marcia Langton forgiving the mistakes I have made and whatever indiscretions or insensitivity I have displayed.
Fr Frank Brennan SJ is professor of law at the Australian Catholic University and an Adjunct Professor at the Australian Centre for Christianity and Culture. This is an extract from his address to the Tabor Centre, Adelaide, on 18 June 2015, as part of the Graeme Clark Research Institute Public Lecture Series.