Reshaping the public space: Lessons for Australian refugee, Aboriginal and climate policy

How propitious it is to be welcomed here by Uncle Colin and to join with him in acknowledging the Wirundjeri people on whose lands we are meeting. How propitious to be welcomed by the Reverend Francis McNab who has ministered here in this Church for the last 45 years. How propitious to be welcomed here so graciously by Her Excellency Linda Dessau, the first Jewish governor of Victoria. We come as Australians always do, as people of diverse backgrounds, respectful of each other's heritages, confident that with our differences we can constitute a more whole polity and a more attentive public square than when we simply meet with our own mob.

Though Francis McNab share a common name with our new pope, I daresay there are many differences which he is happy to retain while at the same time being inspired and edified by so much that has been said and done by Jorge Bergoglio since his election as the Bishop of Rome. Though I am a Catholic priest, I believe it is a privilege and a blessing to live as a person with multiple affiliations. It is no disrespect to Bishop Vincent Long who is with us when I say that I would hate to live in a theocracy even if it were run by popes and Catholic bishops. I believe it is a privilege and a blessing to live in a polity which is pluralist and democratic, with a commitment to transparency and the rule of law.

At mass in Canberra on the Fifth Sunday of Lent in 2013, just after the election of our new pope, I recall greeting parishioners with these words: 'Good evening. My name is Frank and I am a Jesuit. I've had a good week. I hope you have too.' I have been overwhelmed by the positive response by all sorts of people to the election of the first Jesuit pope. I have happily received the congratulations without quite knowing what to do with them, nor what I did to deserve them! He has opened up a vast new panorama and not just for Catholics. Francis is theologically orthodox, politically conservative, comfortable in his own skin, infectiously pastoral, and truly committed to the poor. Of late, most thinking Catholics engaged in the world have wondered how you could possibly be theologically orthodox and infectiously pastoral at the one time, how you could be politically conservative and still have a commitment to the poor, how you could be comfortable in your own skin - at ease in Church and in the public square, equally comfortable and uncomfortable in conversation with fawning devotees and hostile critics. Think only of Francis's remark during the press conference on the plane on the way back from World Youth Day: 'If a person is gay and seeks the Lord and has good will, who am I to judge him?' Gone are the days of rainbow sashes outside cathedrals and threats of communion bans.

Pope Francis's concerns are not narrowly dogmatic or pedagogical but universally pastoral. He knows that millions of people, including erstwhile Catholics, are now suspicious of or not helped by notions of tradition, authority, ritual and community when it comes to their own spiritual growth which is now more individual and eclectic. He wants to step beyond the Church's perceived lack of authenticity and its moral focus on individual matters, more often than not, sexual. He thinks the world is in a mess particularly with the state of the planet — climate change, loss of biodiversity and water shortages, but also with the oppression of the poor whose life basics are not assured by the operation of the free market, and with the clutter and violence of lives which are cheated the opportunity for interior peace. He is going to great pains to demystify his office. He wants all people of good will to emulate him and to be both joyful and troubled as they wrestle with the problems of the age. He is putting a spring in our step and providing us with a new sense of direction and purpose as Church in the World.

We Catholics know that we need to step tentatively and a little more humbly in the public square in light of the revelations at the Royal Commission into Institutional Responses to Child Sexual Abuse. We still do not have credible compelling explanations for the disproportionate level of complaints leveled at our Church during this royal commission. The Royal Commission has received 16,361 allegations in relation to 3,566 institutions. Of the 11,988 allegations covered by the terms of reference, 7,049 allegations relate to faith based institutions while only 3,612 relate to government institutions. Of those 11,988 allegations, 4,418 of them relate to Catholic Church institutions, while only 871 relate to Anglican institutions, and 411 to Uniting Church institutions. These are days of shame for the Catholic Church in Australia. But yes, we do have a spring in our step and we are fortified by a pope who is so at home in his own skin and so at ease in the public square calling all persons to constitute a better world.

One of the other great inspirations for us people of faith in the English speaking public square has been Rowan Williams. His book of essays Faith in the Public Square is a great primer for any of us who mix in the world of politics and public discussion about social, moral and political questions. In his introduction to these essays, Williams is upfront in admitting that 'programmatic secularism is a problem.' According to Williams:

It defines an exclusive public orthodoxy of a new kind and works on the assumption that only one sort of loyalty is really possible. Loyalty to your faith will be a matter of private preference, perhaps even very powerful private emotion, but cannot stand alongside loyalty to the state, to the supposedly neutral public order of rational persons.

Williams identifies two major issues: the first is that people's most intimate and decisive moral inspirations are reduced to private lifestyle choice:

The other is that without respect for the possibility of criticizing the state on the grounds of a truth that does not change at elections, without the possibility of arguing with some things the state thinks are reasonable or self-evident, the chances of radical social change are threatened. This may not feel like a huge issue in liberal democracies, but the history of the last century should remind us that, in times of political crisis and corruption, we need to know what resources there are to resist what a government decides is 'rational'.

Remember how Pope Francis ended his address to the journalists in Rome on the day after his election when he gave a blessing with a difference. He said:

I told you I was cordially imparting my blessing. Since many of you are not members of the Catholic Church, and others are not believers, I cordially give this blessing silently, to each of you, respecting the conscience of each, but in the knowledge that each of you is a child of God. May God bless you!

Now that is what I call a real blessing for anybody and everybody — and not a word of Vaticanese. Respect for the conscience of every person, regardless of their religious beliefs; silence in the face of difference; affirmation of the dignity and blessedness of every person; offering, not coercing; suggesting, not dictating; leaving room for gracious acceptance. These are all good pointers for those of us who are people of faith wanting to make our distinctive contribution in the public square, transforming our public spaces into locales more responsive to the truly prophetic.

I suspect Pope Francis had some of our Australian politicians and pragmatic political processes in mind when he wrote in his encyclical Laudato Si:

A politics concerned with immediate results, supported by consumerist sectors of the population, is driven to produce short-term growth. In response to electoral interests, governments are reluctant to upset the public with measures which could affect the level of consumption or create risks for foreign investment. The myopia of power politics delays the inclusion of a far-sighted environmental agenda within the overall agenda of governments. Thus we forget that 'time is greater than space', that we are always more effective when we generate processes rather than holding on to positions of power. True statecraft is manifest when, in difficult times, we uphold high principles and think of the long-term common good. Political powers do not find it easy to assume this duty in the work of nation-building.

The voice of conscience missions the believer not just for service in the Church but most especially for service in the world, not just with commitment to justice in the Church but most especially to justice in the world. This cannot be done without a commitment to laws and policies which do justice, protecting the weak and vulnerable. It is a call to take an intelligent, informed stand in solidarity. In his encyclical Pope Francis calls us to consider the tragic effects of environmental degradation especially on the lives of the world's poorest. He says:

The problem is that we still lack the culture needed to confront this crisis. We lack leadership capable of striking out on new paths and meeting the needs of the present with concern for all and without prejudice towards coming generations. The establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable, otherwise the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice.

Developing the culture, the leadership, and the legal framework. These are the challenges to those who want to be intelligent believers responding to the call of the Spirit. It is heartening to note Pope Francis's humility born of true consultation with bishops' conferences (seventeen of which are quoted directly in the encyclical) and detailed meetings with experts including scientists, economists and political scientists as well as philosophers and theologians. Having noted, 'There are certain environmental issues where it is not easy to achieve a broad consensus', he concedes that 'the Church does not presume to settle scientific questions or to replace politics. But I want to encourage an honest and open debate, so that particular interests or ideologies will not prejudice the common good'.

Whether Catholic or not, each of us can be inspired by Pope Francis's vision of St Francis of Assisi who is the model of the inseparable bond 'between concern for nature, justice for the poor, commitment to society, and interior peace'. This is the true mark of the contemporary prophetic stance, being able to hold together, being able to juggle and remain committed to: the environment, the poor, the common good and our own interior spiritual peace.

Lampedusa continues to be a beacon for asylum seekers fleeing desperate situations in Africa seeking admission into the EU. Lampedusa is a lightning rod for European concerns about the security of borders in an increasingly globalized world where people as well as capital flow across porous borders. That's why Pope Francis went there on his first official papal visit outside Rome. At Lampedusa on 8 July 2013, Pope Francis said:

'Where is your brother?' Who is responsible for this blood? In Spanish literature we have a comedy of Lope de Vega which tells how the people of the town of Fuente Ovejuna kill their governor because he is a tyrant. They do it in such a way that no one knows who the actual killer is. So when the royal judge asks: 'Who killed the governor?', they all reply: 'Fuente Ovejuna, sir'. Everybody and nobody! Today too, the question has to be asked: Who is responsible for the blood of these brothers and sisters of ours? Nobody! That is our answer: It isn't me; I don't have anything to do with it; it must be someone else, but certainly not me. Yet God is asking each of us: 'Where is the blood of your brother which cries out to me?'

Today no one in our world feels responsible; we have lost a sense of responsibility for our brothers and sisters. We have fallen into the hypocrisy of the priest and the levite whom Jesus described in the parable of the Good Samaritan: we see our brother half dead on the side of the road, and perhaps we say to ourselves: 'poor soul…!', and then go on our way. It's not our responsibility, and with that we feel reassured, assuaged. The culture of comfort, which makes us think only of ourselves, makes us insensitive to the cries of other people, makes us live in soap bubbles which, however lovely, are insubstantial; they offer a fleeting and empty illusion which results in indifference to others; indeed, it even leads to the globalization of indifference. In this globalized world, we have fallen into globalized indifference. We have become used to the suffering of others: it doesn't affect me; it doesn't concern me; it's none of my business!

Here we can think of Manzoni's character — 'the Unnamed'. The globalization of indifference makes us all 'unnamed', responsible, yet nameless and faceless.

It is all very well for the Pope to say these things. But who is listening? And even if they are listening, who is taking any notice? Pope Francis has not provided any resolution of the complex legal and political issues arising at our borders. But he has invoked literature, the scriptures, and our religious tradition to prick the consciences of those who too readily determine that national interest trumps the individual claim of the poor, the widow and the stranger. The Pope's intervention and the innate moral sense of the Italian community that there had to be a more decent way of dealing with prospective migrants drowning in the Mediterranean contributed to the Italian Government's decision to establish the short lived and very expensive Mare Nostrum operation. Last week, the Australian Catholic Bishops' Conference published the annual social justice statement entitled For Those Who've Come Across the Seas. Our bishops have said, 'As a nation, we harm innocent people by detaining them, pushing back their boats and transferring them to other impoverished nations.'

In Australia, some refugee advocates have been pining for the past leadership of the now deceased Gough Whitlam and Malcolm Fraser. Whitlam was prime minister at the end of the Vietnam War. He was succeeded by Fraser in December 1975. Each of them was concerned by the prospect of large numbers of Vietnamese refugees arriving in Australia by boat and without visas. Fraser led the nation in espousing the need for Australians to be generous in their response to Vietnamese boat people scattered to all corners of South East Asia. We need to remember however that both political parties were equally committed to stopping the boats coming directly uninvited into Darwin Harbour. Initially with the fall of South Vietnam, Australian politicians and civil servants were very wary about receiving large numbers of refugees from Vietnam. A joint parliamentary committee was unanimously of the view when reporting in 1976 that prior to the evacuation of the Australian embassy in Saigon in 1975 there was 'deliberate delay in order to minimise the number of refugees with which Australia would have to concern itself'. Politicians from both sides of the aisle stated, 'As unpalatable as it may be, we are forced to conclude that the [Whitlam] Government acted reluctantly and, as expressed by one witness, in order to placate an increasingly suspicious Australian public.'

As prime minister, Fraser gave great leadership in the Australian community cultivating public acceptance of the idea that Australia would play its part in receiving a significant number of Vietnamese refugees chosen by Australian government officials from camps in other South East Asian countries like Thailand. Eventually an orderly departure program was negotiated with the Vietnamese government. Despite the small number of boat arrivals, there were members of parliament on both sides of the political aisle in Australia expressing concerns about 'queue jumpers' and those falsely claiming to be refugees while seeking a better life. Both Whitlam and Fraser, like all their political successors, expressed concerns about boat people arriving without visas and without prior selection by Australian officials. In May 1977, Fraser's minister for Immigration, Michael MacKellar set out Australia's first comprehensive refugee policy insisting: 'The decision to accept refugees must always remain with the Government of Australia.' He announced, 'There will be a regular intake of Indo-Chinese refugees from Thailand and nearby areas at a level consistent with our capacity as a community to resettle them. In this operation we shall be relying greatly on the co-operation of the UNHCR, other Governments, especially the Thai Government, and voluntary agencies in Australia.' When boats starting arriving regularly in Darwin Harbour, wharfies and others started to sound the alarm. Klaus Neumann in his dispassionate analysis of the period in his book Across the Sea: Australia's Response to Refugees — A History notes that MacKellar became half-hearted in his defence of the admission of boat people.

On 22 November 1977, MacKellar addressed the NSW Branch of the Institute of International Affairs warning that 'no country can afford the impression that any group of people who arrive on its shores will be allowed to enter and remain ... We have to combine humanity and compassion with prudent control of unauthorised entry, or be prepared to tear up the Migration Act and its basic policies'. He was backed up by Foreign Minister Andrew Peacock who said that Australia could not 'continue to indefinitely accept Asian refugees arriving unannounced by sea' and that 'Australia could not be regarded as a dumping ground'. A year later, there was an increasing flow of refugees out of Vietnam and into camps around South East Asia. The Fraser government insisted on the need for a co-operative international approach. When non-government agencies started to provide assistance to boat people on the high seas, MacKellar told parliament: 'I put the proposition that the people concerned with the project could not see a situation emerging where Australia would automatically allow the entry of any people that such a vessel happened to pick up.'

On 29 June 1978, the Labor Party's spokesman on immigration matters, Dr Moss Cass, wrote a very inflammatory opinion piece in The Australian lamenting the arrival of over 1,000 boat people in Darwin Harbour, none of whom had been sent back to Vietnam. He said, 'The implications of a government policy which accepts queue jumping on this scale are obvious.' He was adamant that 'those refugees seeking residence in Australia who jump the queue by arriving on our shores without proper authorisation should not be given resident status, even temporarily'. It is important to appreciate that the notion that boat people are queue jumpers germinated at the very beginning of the first modest wave of boat people fleeing to Australia, and despite the heroic moral leadership of Malcolm Fraser. On 15 August 1978, the Labor frontbencher Clyde Cameron who had been Whitlam's Immigration Minister asked Fraser a rather hostile and insinuating question: 'Will he tell the Parliament what approaches were made by the United States of America which were in any way responsible for the decision to permit Vietnamese nationals to enter Australia without permits.' Fraser answered:

The United States of America has not attempted to influence procedures for entry to Australia. The Australian Government will at all times decide the requirements for entry to Australia. No Vietnamese nationals are permitted to enter Australia without entry permits. The 1634 boat refugees who have arrived in Darwin without prior authority were issued with temporary entry permits on arrival pending consideration of their applications to remain here.

The major political parties were agreed on the need to arrest the flow of boats, while being generous with the resettlement of Vietnamese refugees who then came through the camps in South East Asia under what later became the comprehensive plan of action in 1989. On 16 March 1982, Ian McPhee, Fraser's next immigration minister after MacKellar, provided Parliament with an update on the government's refugee policy restating, 'The decision to accept refugees must always remain with the Australian Government'. He told Parliament:

During my visit last year I reached the conclusion, commonly held by many involved in both the Indo-Chinese and Eastern European refugee situations, that a proportion of people now leaving their homelands were doing so to seek a better way of life rather than to escape from some form of persecution. In other words their motivation is the same as over one million others who apply annually to migrate to Australia. To accept them as refugees would in effect condone queue-jumping as migrants.

He called for a balance between compassion and realism. He announced progress with an orderly departure program aimed at arresting the flow of boats out of Vietnam. He reached agreement with his counterparts in Thailand and Malaysia how to arrest the flow and how to handle the numbers coming through. All this humanitarian effort was posited on the premise of stopping the boats coming uninvited to Australia.

There was a very moving scene at the state funeral of Malcolm Fraser at the Scots Church just down the road here in Collins Street when Vietnamese Australians thronged outside the church carrying placards which read: 'You are forever in our hearts: farewell to our true champion of humanity: Malcolm Fraser'. I honour Fraser, but not because he opened our borders to fleeing boat people coming in their tens of thousands. He didn't. He secured the borders, and then he led the nation in opening 'our arms and hearts to tens of thousands of refugees' as the novelist Tim Winton put it in his Palm Sunday address in Perth this year. Winton was wrong to claim that Fraser welcomed the boats. Winton was right to proclaim:

I was proud of my country, then, proud of the man who made it happen, Malcolm Fraser, whose greatness shames those who've followed him in the job. Those were the days when a leader drew the people up and asked the best of them and despite their misgivings, Australians rose to the challenge. And I want to honour his memory today.

Seeking the right balance between compassion and realism, between the human rights of asylum seekers and the national interest of a rich democratic country, we might find as much guidance from the memory of the last generation of refugees in their honouring of the last generation of political leaders who tried to forge a solution compassionate and fair to the many who were seeking asylum and acceptable to the voting public. I have concluded that stopping the boats is a precondition to finding a politically acceptable, compassionate and fair solution. It is time to quarantine the question of the morality of those stopping the boats, accepting the political imperative of stopping the boats if they can practically be stopped. The boats will be stopped. But they need to be stopped decently and fairly so that the community might then be encouraged and led to be more generous in opening the doors to a higher quota of refugees each year being selected by government from situations of acute despair, and in funding the international agencies and other governments caring for asylum seekers in transit. As one of the richest, most democratic countries in Southeast Asia, Australia will always be an attractive destination for some of the 59.5 million displaced persons in our world.

I have come to accept that my political leaders will always maintain a commitment to stopping the boats, no matter what political party they represent; but I insist that there is a need for international co-operation to determine how decently to stop the boats while providing an increased commitment to the orderly transfer of an increased number of refugees across our border so that they might live safe and fulfilling lives contributing to the life of the nation.

This cannot be done in Australia until we shut down the processing centres on Nauru and on Manus Island, until we accept that people should only be held in detention while issues of identity, security and health are determined, and while we negotiate arrangements with Indonesia, India and any other transit countries to which asylum seekers are being returned, replicating the new European regulation:

No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement.

It might then be possible for Australian officials to conduct prompt, reliable onboard assessments of asylum seekers on vessels determining whether it is appropriate to return them to their last port of call.

Though I doubt the possibility of the EU negotiating appropriate returns of asylum seekers to Libya for a very long time to come, I continue to entertain the hope that Australia can negotiate appropriate returns to transit countries such as Indonesia for Iraqis, Afghans and Iranians and India for Tamils, so that Australia might then decently extend the hand of welcome to more of the world's 59.5 million displaced persons. For the moment, Australia is failing to strike the right balance between human rights and the national interest. It is stopping the boats indecently, violating the human dignity of those being held in unsatisfactory conditions in Papua New Guinea and on Nauru and failing to ensure appropriate safeguards are in place for the return of asylum seekers to Indonesia. For as long as international lawyers claim there is no possibility of a legally negotiated regional agreement for safe returns because they argue that asylum seekers have a right of entry to Australia to seek asylum, the Australian government, the Australian parliament, and the Australian courts will maintain, with impunity but with the occasional expression of outrage from international lawyers, a regime of returns insufficiently scrutinised for human rights compliance. I now accept that the boats will continue to be stopped (no matter which political party is in power), but that they should be stopped decently and in compliance with the legal regime enunciated by the European Union which has to deal with a far more pressing issue but subject to the more searching supervision of the European Court of Human Rights and of the European Parliament which has greater sensitivity to the human rights of asylum seekers than do their more pragmatic Australian colleagues.

I think it is time to take an ethical 'pass' on the stopping of boats. But we need to conduct closer ethical scrutiny on the downstream measures which initially were designed in part as deterrents. Once you've locked the door, there is no need or justification for maintaining a chamber of horrors inside the house to deter unwanted visitors!

In May 2014, Malcolm Turnbull conceded on BBC television that Mr Rudd's renewed Pacific solution as enacted by Prime Minister Abbott was harsh, indeed very harsh. Though conceding that others thought it cruel, he did not think it so. When asked if he was comfortable with Australia's policy of 'outsourcing its human rights responsibilities to ill-equipped third countries,' Mr Turnbull replied: 'I don't think any of us is entirely comfortable with any policies relating to border protection.' He was insistent that Australia was acting in compliance with international law. He then added: 'We have harsh measures, some would say they are cruel measures. I would not go so far as to say they are cruel. But let's not argue about the semantics. The fact is that if you want to stop the people smuggling business you have to be very, very tough.'

Anyone hoping that a Turnbull government will be any more accommodating of boat people than an Abbott government will be sadly mistaken. When he was last Leader of the Liberal Party, Malcolm Turnbull was adamant in Parliament that the Howard government policies stripped back by the Rudd government had been correct. Debating people smuggling as a matter of public interest, he told the House of Representatives on 20 October 2009:

This [Rudd] government is failing the Australian people in one of the most fundamental responsibilities of any sovereign government: to secure and protect our borders. It is failing because of the changes to our immigration laws, which have had the effect of increasingly outsourcing Australia's generous humanitarian immigration program to the predations of people-smugglers; it is failing because it is exposing the vulnerable victims of this pernicious trade to the great danger of making perilous journeys across the ocean in unseaworthy vessels; it is failing because of the unnecessary stresses and dangers this places on our defence forces, our police and our Customs officers as they attempt to do their job and stop this illegal trade; and it is failing because an outcome of these policies is to relegate further back in the queue thousands of deserving people waiting to have their claims for asylum processed legally.

He went on to say:

It should not ever be controversial to state, as a matter of policy and principle, that Australians have the right to decide who comes to this country, our country, and the manner in which they come. The previous Prime Minister, Mr Howard, was criticised for saying that, but the fact is that that is what every Australian expects of their government. Under the Howard government it took a range of strong measures and years of vigilance to halt people-smuggling. The Rudd government, on the other hand, has quite deliberately, and with dangerous naivety, unpicked the fabric of that suite of policies, sending an unmistakeable message to people-smugglers that our borders are open for business. In short, Labor has lost control of our borders.'

Mr Turnbull needs to admit that a purposeless chamber of horrors is not just harsh; it is cruel, and it is unAustralian. It's time to: close the facilities on Nauru and in Papua New Guinea; abandon the Cambodian shipment plan; negotiate a regional agreement for safe returns ensuring compliance with the non-refoulement obligation; and double the refugee and humanitarian component from 13,750 places to 27,000 places in the migration program, as recommended by the 2012 Expert Panel. The government should encourage further community participation in a refugee resettlement scheme which allows refugee communities and their supporters to increase the number of refugees resettled without taking the places of those refugees who would come anyway without community sponsorship. Why not increase the humanitarian program to at least the 20,000 places which were guaranteed prior to the 2013 election of the Abbott Government? And provide another 7,000 places for community sponsored refugees. I agree with novelist Tim Winton that there is a need for Australia to turn back, to 'raise us back up to our best selves'. That can best be done by securing our borders and increasing our commitment to orderly resettlement of more refugees, rather than by opening the borders, undermining the community's commitment to further assisting more of those 59.5 million people who are suffering displacement, most of them having no prospect of employing a people smuggler to get them to the border of a rich democratic country.

Labor's Kevin Rudd in 2013 and Richard Marles in 2015 ultimately came to declare, 'We must stop the boats', and in much the same way as Prime Ministers Fraser, Hawke and Howard did before them. Think only of Bob Hawke's response to the arrival of 220 Cambodian boat people in 1990:

Do not let any people, or any group of people in the world think that because Australia has that proud record, that all they've got to do is to break the rules, jump the queue, lob here and Bob's your uncle. Bob is not your uncle on this issue, other than in accordance with the appropriate rules. We will continue to be one of the most humanitarian countries in the world. But it is not an open-door policy.

These leaders reacted in this way not just so that their party could have a real chance of being elected, not just so that they might improve the processing of asylum claims onshore while securing our borders, but so that they could lead the people and be led by the people with a commitment to that distinctively political necessity of Australian public life best summed up by John Howard in his 2001 election speech: 'we will decide who comes to this country and the circumstances in which they come', and with a commitment to that universal political imperative that the world be made a safer place for at least a handful of the globe's 60 million displaced persons.

We should forthwith close the detention facilities on Nauru and on Manus Island. These are evil places. Mr Turnbull should concede that they are not just harsh, they are cruel — because they no longer serve any useful purpose. All those detained should be brought to the Australian mainland. We should detain asylum seekers on the mainland only for the purposes of health, security and identity checks. Once these checks are complete, asylum seekers ought be allowed to live in the community with work rights and basic social security. We should abandon the Cambodia solution. We should increase our annual quota of humanitarian places. We should commit to diplomatic efforts aimed at enhancing the multilateral undertakings to protect asylum seekers in South East Asia and to provide permanent solutions for refugees. But the quid pro quo is prompt screening of boat people on the high seas, or even on arrival at Christmas Island, to assess whether they are in direct flight from persecution IN Indonesia. If not, they can be returned safely and with dignity to Indonesia. Asylum seekers in Indonesia should then be processed in a real queue and protected by Indonesia, UNHCR and IOM — with assistance from Australia, conceding that there will be limits to which the Indonesians will agree to enhanced protection and processing because they will not want to set up a magnet effect.

If we could agree that the political imperative of stopping the boats requires suspension of moral judgment of those enacting the policy, we might then engage in the moral and political assessment of post-arrival policies which do not pass muster and which no longer serve any useful purpose. There is one advantage of stopping the boats upstream. No longer is there a need for downstream deterrents. Those deterrents now lack all moral coherence. The dirty hands of their architects and advocates need to be exposed for the good of those suffering ongoing abuse in our name in Nauru, on Manus Island, and in our community without adequate access to work or welfare. The front door is now locked, so it's time to close down the chamber of horrors. If the architects remain convinced that the boats can continue to be stopped upstream only by maintaining the downstream bundle of evils, then they need to show remorse and we the voters should be less forgiving for the ongoing evil committed in our name. It is one thing to posit national identity and politics on the securing of borders by turning away all comers except those with visas or those in direct flight from persecution; it is another to posit national identity and politics both on the continuing abuse and punishment of asylum seekers within the purview of the polity so as to send a message to other would-be arrivals, and on the continuing corruption of more fragile polities like Nauru and PNG. Stopping the boats has been part of our national narrative, and probably part of our national identity, since the first boat people arriving in Darwin Harbour in the 1970s were called queue jumpers. Punishing and excluding those who make it has no place in our national narrative. For the good of the Commonwealth, and our mendicant Pacific neighbours, such punishment and exclusion should cease.

A policy might be classed as harsh or tough when it adversely impacts on individuals while achieving some national objective. But it becomes cruel when it continues to impact adversely on individuals without providing and countervailing public good. Given that the boats are now stopped and will remain so, there is no point (other than cruelty and electoral advantage) in keeping Nauru and Manus Island open, in restricting work and welfare rights onshore, and in maintaining detention for any reason other than health, security and identity checks. Our new prime minister has it within his gift to stop being cruel.

It is now more than three years since the Expert Panel set up by the Gillard Government reported on how the Constitution might be amended providing recognition of Aboriginal and Torres Strait Islander peoples. The Abbott Government was waiting for some consensus to emerge around the recommendations of the panel. Progress was slow. No one thinks it realistic to seek a constitutional amendment during the life of this Parliament. The best to be hoped for is a commitment by all major political parties to an agreed referendum question when going into the next federal election, with the understanding that the new government and the new parliament would proceed to put a referendum to the people, perhaps on Saturday 27 May 2017, the fiftieth anniversary of the successful 1967 referendum.

Prime Minister Abbott said he was committed to completing the Constitution, rather than changing it. Now that sounds almost like a theological challenge — to complete something without changing it. There will be no amendment to the Constitution unless a broad cross section of Indigenous leaders seek it. It has been in response to Indigenous misgivings about the existing constitutional provisions that our political leaders have been prepared to consider amendments to the Constitution. No referendum will succeed unless the majority of Australians are convinced about the necessity, correctness and certainty of the proposed amendments.

The co-chairs of the expert panel, Patrick Dodson and Mark Leibler said, 'The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.'

The art and statesmanship of constitutional change is in matching Indigenous aspirations, constitutional architecture, and public support. The key provisions of the Constitution cannot be thrown out of kilter. Our Constitution is still an appendix to an Act of the Imperial Parliament. It is a monarchical, not a republican, Constitution. It does not include a bill of rights. It prosaically lists the powers of the Commonwealth Parliament. The Imperial Act contains an old worldy preamble; the Constitution contains no preamble.

There has been a lot of talk about including a preamble in the Constitution. Any preamble would need to state our main national characteristics and express the key reasons for deciding to constitute and maintain the Australian federation. That would best be done, if and when, Australians decide to become a republic. The urgent need is not for a comprehensive preamble but for an acknowledgment of the assured place of Aboriginal and Torres Strait Islander peoples in our history and as part of our continuing national identity. All Australians could be surer of our distinctive national identity and place in the world if the Constitution were to acknowledge indisputable facts unique to Indigenous Australians.

The expert panel suggested a constitutional ban on racial discrimination. In the absence of a bill of rights, why would we contemplate a comprehensive constitutional ban on racial discrimination by the Commonwealth and the states but not a ban on sexual discrimination or discrimination on the basis of sexual orientation or religious belief?

Anyway, a constitutional ban on racial discrimination is not as simple as it seems. When legislating for native title in 1993 and 1998, the Keating and Howard governments were unable to agree to the demand by Indigenous leaders that all provisions of the Native Title Act be strictly subject to the Racial Discrimination Act. In the Senate, the Democrats and Greens had proposed such an amendment but the major parties, in government and in opposition, agreed to oppose it because of its 'so-called clause busting capacity'. Let's remember that back in government, Labor twice made substantive amendments to John Howard's Native Title Act but they dared not touch the provision casting the fragile balance between the Native Title Act and the Racial Discrimination Act. Anyone serious about a constitutional ban on racial discrimination should first clear the decks by trying to convince the major political parties to amend the Native Title Act as previously suggested by the minor parties. They would first need to convince the Business Council of Australia, the National Farmers' Federation, and the Minerals Council of Australia to agree to native title amendments which previously were thought to put in doubt future pastoral and mining activities. Without these precautions, a constitutional guarantee of non-discrimination would be a clause buster of nuclear proportions. It's just not on.

It's time to learn the real lessons which followed the 1967 referendum. That referendum kick started the change from terra nullius to land rights, and from assimilation to land rights. Prime Minister Harold Holt appreciated that a modest referendum carried overwhelmingly provided the political mandate for policy changes. The catalyst for change was the Council for Aboriginal Affairs which he then set up to advise government and to engage daily with public servants and politicians when considering policy and administrative changes. Any modern equivalent would not restrict its membership to 'three wise white men' even of the eminence of Dr HC Coombs, Professor WEH Stanner and Barrie Dexter. Noel Pearson is right to insist that Aboriginal leaders need a place at the table when new policies are being formulated. An Indigenous council is needed to advise government. Coombs, Stanner and Dexter constantly lamented that they lacked a statutory charter setting out their role and responsibilities. Any new council would need a clear legislative mandate. I caution against tampering with the constitutional architecture, seeking the immediate inclusion of such a council in the Constitution.

Indigenous representation is always a fraught exercise. Noel Pearson rightly suggests that any Indigenous body be partly elected and partly appointed. At least in the first instance it would be impossible to design a constitutional provision for a Council which was technically and legally sound, being non-justiciable and ensuring the untramelled sovereignty of parliament.

When considering whether to include an Indigenous advisory body in the Constitution, many voters will have an eye to the past experience with ATSIC. Whatever its shortcomings, ATSIC was well resourced with a series of local and regional councils in addition to its national commissioners. The art of national Indigenous representation is matching local indigenous concerns with national policy positions ensuring that there is a two way communication between those speaking with a national voice and those working at the grassroots. A national Indigenous body without elected local and regional councils will have its work cut out in maintaining local legitimacy.

When parliamentary committees are considering proposals for legislation, they may be well assisted by receiving submissions from the Indigenous Council. No doubt they will also be attentive to local indigenous groups such as Cape York Partnerships and the various land councils, community councils, and service delivery organisations when considering legislative proposals which impact on local indigenous communities. There will be a need to consider any co-ordinating role which the Indigenous Council might play, in much the same way as ATSIC was able to help convene and resource Indigenous groups in the historic native title debates. The Council for Aboriginal Affairs agitated for seven years for a statutory charter.

The grunt work of the Council in effecting real change was not the periodic exchanges with members of parliament when considering changes to legislation but the daily engagement with bureaucrats seeking changes to policy and implementation. Any Indigenous Council effecting real change will need the resources to be able to engage daily with Commonwealth and state bureaucracies.

Four decades after the passage of the Northern Territory land rights legislation, and two decades after the first recognition of native titles, there are major policy issues which demand Indigenous participation at the table. Many Aboriginal communities now have title to large areas of land, but they often cry that they are land rich and dirt poor. It is time to review the balance between the security and utility of land. Aborigines want to secure their land base for future generations, but they also want to use the land now in an economical way which requires the capacity to lease, mortgage and sell some land. Remote communities need to be able to work with government determining their practical life choices, including decisions about which services are affordable in distant sparsely populated locations.

Our Constitution unamended makes no mention of Aborigines and Torres Strait Islanders. It is premised on the outdated notions of terra nullius and assimilation. It is time to modernise the Constitution, eliminating the outdated notion of 'race' and including an acknowledgment of the nation's Indigenous heritage and ongoing identity. This is no small change. It is a change which is necessary, correct and certain. Indigenous leaders may want to delay such incremental change, convinced that more substantive change might be achievable in future. That is surely their prerogative. But should they seek constitutional inclusion now, an Acknowledgment and a Commonwealth power to make laws with respect to the matters acknowledged would be a principled, safe way forward to complete our Constitution.

The novel addition of an Indigenous Council to our constitutional architecture would first need to be road tested by setting it up by legislation, refining it, and then if it works, proposing it for inclusion in the Constitution at a later date. The voters will not decide to put such a council in the Constitution untested, sight unseen. Let's remember, Australians are very cautious about constitutional change. No voter under 56 years of age has ever voted for a successful change to our Constitution. No voter under 69 years of age had the opportunity to vote for the 1967 referendum.

Our indigenous leaders are now at a fork in the road. We await their call. Either we take the short and certain path to indigenous acknowledgement, scrapping the outdated notion of race, and recasting the Commonwealth power to make laws with respect to the things acknowledged (and we could do that by May 2017), or we wait longer to take the less certain path to a more distant destination which may include an Indigenous council as part of our constitutional arrangements. That would not be achievable by May 2017.

The prudential decision for our indigenous leaders is choosing the path at this fork in the road which they prefer as their fresh starting point when they wake on the morning of 28 May 2017. Would they prefer to be working with our present Constitution which does not mention them or an amended Constitution which acknowledges them? The latter is no small change, though it is a very modest change when compared with the ultimate laudatory goals of Indigenous leaders. Not being Indigenous, I respectfully await the decision of our Indigenous leaders. There is no magic in the date, 28 May 2017. The critical issue for immediate determination is whether the Indigenous leaders want to seek an achievable constitutional change during the life of the next Parliament. If they do, it is essential that the amendment and the referendum question be formulated before the next election. If they do not, we can all put the matter on hold happily for at least another five years.

Australia is a more mature and more complex polity than it was at the time of the 1967 referendum. We need to be very attentive to the diversity and (hopefully) emerging consensus of Aboriginal viewpoints. We also need to be attentive to what measures the leaders of our major political parties will be prepared to sponsor during the life of the next parliament, championing those measures in a referendum campaign.

If there is to be a referendum in the life of the next parliament, we need a firm timetable for some key steps in what Aboriginal leaders Patrick Dodson and Noel Pearson describe as 'a diplomatic process'.

First, Aboriginal leaders need to hear and report on the constitutional aspirations of their people. Second, Abbott and Shorten have to indicate which of those aspirations they are prepared to sponsor in the parliament. Third, Aboriginal leaders need to report back on whether they are willing to accept the proposals which the Government and Opposition are prepared to sponsor.

If they are not, there will be no point in proceeding further. We will all have to wait for another day, probably if and when Australia moves towards becoming a republic. If there is agreement between our Aboriginal leaders and our elected national leaders, we could then proceed to some form of Constitutional Convention to finalise the question to be put to the people at referendum.

To avoid the frustration of shattered expectations, all participants in the process need to remember that Australians have only ever approved eight referenda. Two related to the Commonwealth taking over state debts. Two related to the mode of election of senators. One related to voters in the ACT and the Northern Territory being able to vote in referenda. One related to the retirement age of federal judges. Only two related to expanding Commonwealth power: after World War II, the voters agreed to the Commonwealth Parliament being able to legislate for pensions and social security; and in 1967, the voters agreed to remove the adverse references to Aborigines so that the Commonwealth Parliament could make laws for them.

Three of the eight successful referenda were steered to success by Bob Ellicott when he was Attorney-General in 1977. He advises that to have any prospect of success a referendum question 'should have become broadly acceptable to the Australian people as a result of broad consultation and the provision of information to the public as to its purpose and effect'. He cautions that the question also 'should contain no element of possible substantial confusion on legal or other grounds'.

Though there has been much talk in recent weeks about 'minimal' and 'symbolic' change versus 'substantial' or 'real' change, we all need to remember that there is no such thing as only a small constitutional change in the Australian Commonwealth with its constitutional sclerosis. The lesson from 1967 is that a modest change, carried overwhelmingly by the Australian people provides the impetus for change. The institution of a body like the Council for Aboriginal Affairs (1967-1976), which this time would be constituted by Aboriginal and Torres Strait Islander representatives with a statutory charter, would be the catalyst for change.

Being an Australian, I will do all I can as a citizen to help set the contours for a successful referendum of acknowledgment and for more considered assessment of additional measures such as Noel Pearson's Indigenous Constitutional Council. On this issue, I consider it a prophetic role to be engaged in the public square respectfully trying to shape the contours for debate which might enhance the prospects of Indigenous recognition in the Constitution should that be the considered desire of Indigenous leaders.

Whether the issue be the protection of our borders and the enhancement of our humanitarian concern for desperate people in flight from persecution or the best way to enhance the place and future of Aboriginal Australians, the prophetic voice in the public square is indispensible and that politics matters, because there are matters which can be resolved only by civic deliberation by persons with diametrically opposed comprehensive worldviews. Law matters, because otherwise politics risks becoming simply the will of the majority without regard for the legitimate aspirations of all, even those who are despised and powerless. Constitutional arrangements matter because the foundations of our laws and politics need to recognise the abiding realities of our polity, including the history and aspirations of Indigenous Australians.

The language and jurisprudence of human rights is useful because it is the discourse which allows the cross-fertilisation of ideas between different societies about how best to protect the inviolable inherent dignity of all persons. An understanding of our interdependence matters — an appreciation that my peace, wealth and security is dependent on the same social matrix which denies peace, wealth and security to others. Our commitment to solidarity matters — taking a stand with those on the margins even when justice in the short term is unachievable.

The strength of our age is found in the prizing of the individual, in human rights, in self-determination, and in non-discrimination. But these notions are inadequate without a commitment to community, the common good and the public interest. Rowan Williams reminds us:

The significance of the Church for civil society is in keeping alive a concern both to honour and to justify the absolute and non-negotiable character of the human vision of responsibility and justice that is at work in all human association for the common good. It is about connecting the life of civil society with its deepest roots, acknowledged or not. The conviction of being answerable to God for how we serve and respect God's human and non-human creation at the very least serves to ensure that the human search for shared welfare and responsible liberty will not be reduced to a matter of human consensus alone.

The Good News for those of us passionately engaged in the public square is that 'the Church is most credible when least preoccupied with its security and most engaged with the human health of its environment' especially when its engagements 'with this human health may run sharply against a prevailing consensus'. That's why Pope Francis is good news for all believers. Let's just watch this spot as he takes the stand at the US Congress next week fearless about all that those conservative Catholic Republicans will throw in his path. Let's always remember that the prophetic is not necessarily unreally idealistic or politically unachievable; the prophetic is right and achievable, a sign of the Kingdom to come, breaking in here and now for the good of all, here and now, regardless of the prevailing political orthodoxy or fads of political correctness. The great thing about Pope Francis is that he goes to places like Lampedusa and the US Congress precisely because he wants to make a difference, and he wants the differences in laws and policies to reflect the teachings of the One who came that we all might have life to the full, especially those who are the poor, the widow and the orphan.

Topic tags: Frank Brennan, asylum seekers, refugees, climate change, Aboriginal

 

 

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