QUARTERLY ESSAY 69 Moment of Truth



Megan Davis

As one of the principal designers of the constitutional dialogues and the National Constitutional Convention, alongside Referendum Council colleagues such as Noel Pearson and Pat Anderson, I found that Mark McKenna’s Quarterly Essay exhausted me. The constitutional dialogues were a huge endeavour. In the weeks after reading this eminent Australian historian’s engagement with the Uluru Statement from the Heart, I procrastinated on writing a reply. After all, it was his book This Country: A Reconciled Republic? that had heavily influenced my decision to become a constitutional lawyer. After Turnbull’s unprincipled rejection of the Uluru reforms, particularly the voice to parliament, combined with the apparent resurgence of a version of republicanism that, as in 1999, ignores completely the unfinished business of the Australian state, it felt like Groundhog Day.

Reading McKenna, it was hard not to feel aggrieved on behalf of the many civic-minded Aboriginal and Torres Strait Islander women and men, traditional owners, grannies and elders and young people who earnestly participated, in good faith, in a state-sanctioned process aimed at improving Australian democratic governance. Burned by decades of rejection and reform inertia, the constitutional dialogue participants routinely expressed cynicism at the recognition project. Referring back to political statements such as the Yirrkala bark petitions of 1963, the Barunga Statement of 1988, the Eva Valley Statement of 1993, the Kalkaringi Statement of 1998, the ATSIC report on the Social Justice Package in 1995, the Council for Aboriginal Reconciliation, and the Kirribilli Statement of 2015, they astutely observed that those efforts lay collecting dust or adorning Parliament House walls.

We implored dialogue participants to set aside any conviction that the Australian legal and political system cannot change. We argued that the institutions of the Australian state are designed to evolve: tradition and change. The Constitution was intended to be altered. We said that law reform requires imagination, and we must work together to imagine the world can be a better place for our jarjums and strive towards the goal. The National Constitutional Convention delivered that goal. The meeting held at Yulara near Uluru rubber-stamped the decisions already made in the regions. The convention had no mandate to revisit the decisions the dialogue participants had collectively made across this country from December 2016 to May 2017, traversing wet season and cyclones and ceremony. By Uluru, the people had spoken.

Those 1200 mob across the country are the heroes of this story. They suspended their disbelief that the Australian state could change. And for three magical, and often heated, days in twelve regions, a meaningful constitutional settlement was designed. Team players, our people. In good faith they discharged their civic service to the nation in the most serious, determined and learned way. Generosity beyond belief. The dialogue invitations privileged traditional owners: 60 per cent were TOs, 20 per cent were Aboriginal community organisations and 20 per cent were individuals. This was to avoid the group-think of usual suspects. These people understood civic responsibility because they understand reciprocity and communal responsibility. It is at the heart of our culture. And McKenna is right to identify this process as a triumph of Australian democracy, something all Australians should be proud of.

As the Referendum Council stated in its final report, the dialogues were unprecedented in Australian history:

[This is] the first time a constitutional convention has been held with and for Aboriginal and Torres Strait Islander peoples. It was significant … as a response to the historical exclusion of Aboriginal and Torres Strait Islander peoples from the original processes which led to the drafting, establishment and oversight of Australia’s Constitution …

[The] Dialogues engaged 1,200 Aboriginal and Torres Strait Islander delegates [an average of 100 delegates from each Dialogue] out of a population of approximately 600,000 Aboriginal and Torres Strait Islander peoples nationally.

This is the most proportionately significant consultation process that has ever been undertaken with First Peoples. Indeed, it engaged a greater proportion of the relevant population than the constitutional convention debates of the 1800s, from which First Peoples were excluded.

Equally unprecedented was the historic consensus of the many first nations, “coming from all points of the southern sky.” Never before, in the short life of Australian democracy, have Aboriginal and Torres Strait Islander peoples participated directly in a deliberative decision-making on constitutional reform and delivered a consensus position.

Those intimately involved in the Referendum Council’s work had prepared for every contingency in planning the dialogues, from interpretation to cultural protocols. We had even, to some degree, predicted the contemptuous response of the Turnbull government in rejecting Uluru: measly, scared, mean-spirited; true to form. What we were not prepared for was the emotional reaction to and overwhelming support of the Australian people for the Uluru Statement from the Heart. It has crossed political boundaries. This is no doubt why the prime minister has placed the voice to parliament back in the terms of reference for another parliamentary joint select committee, the fifth government mechanism on recognition in seven years. The anger at Turnbull’s rejection of this very weighty and prudent law-reform proposal for weak and incoherent reasons, as well as his televised aggression toward young Aboriginal lawyer Teela Reid, who is in support of Uluru, galvanised support among Australians across party lines.

We issued the Uluru Statement “from the heart.” We issued it deliberately and purposefully to our fellow Australians because we know the limitations of the political class. We predicted that the Australian prime minister would fly to Mutitjulu, to feast on a cultural ceremony with an entourage of advisers – including those who have presided over one of the worst Indigenous policy eras on record – accompanied by a fawning and mostly uncritical press, to witness the ritualism of another prime minister transforming a political painting into a decorative one.

This is the torment of our powerlessness.

We made a strategic decision about reform inertia in contemporary Australian politics and wrote an argument for structural reform that we hoped would be persuasive to the Australian people. We hoped Aussies of all stripes would read it, be persuaded of the exigency of structural reform, and walk with us to help us convince those who are meant to represent us to think beyond the short-termism of electoral cycles and their own self-interest, to unify the nation so that the ancient polities of the country on this continent we all share can shine through as a fuller expression of Australia’s nationhood.

Which brings me to Mark McKenna’s essay: the Uluru Statement from the Heart is the blueprint for an Australian republic.

How could it be otherwise?

McKenna, one of Australia’s leading historians, posited this argument after the Australian Republic Movement decided to go it alone in 1999. Decoupling the idea of an Australian head of state from the question of Aboriginal sovereignty is a reductive vision of republicanism.

How can you shift sovereignty without addressing Aboriginal sovereignty? As McKenna writes, “The Uluru Statement’s invitation to ground the Commonwealth’s sovereignty in the ancient sovereignty of Indigenous Australia goes to the heart of the coming republic.” Republicanism, in its legal and political potential, invites the nation to engage in a discussion of a much grander vision of nationhood and structural reform than the 1999 version, which was and remains, structurally, lipstick on a pig. As McKenna writes, “‘Business as usual’ – the credo of minimalist republicanism in the 1990s – is no longer a credible response.”

Emotional appeals lamenting that the sons and daughters of the Southern Cross can never be the head of state are antiquated in this global world. The charge they carried in the 1990s is no longer felt. I should know. I am a republican. I was a kid republican in 1999. I am an adult republican in 2018.

Like many of those who contacted me following my recent essay in the Monthly, I don’t feel an emotional connection to the Australian republican movement. Australians have more serious things to worry about than whether their sons and daughters can be president. What a luxury of a thought. This is an era, after all, when ordinary citizens are acutely conscious of the inequality produced by unrestrained neoliberal policies, and of the limitations of minimalist ballot-box democratic governance. We live in an era of professional politicians. We know precisely whose sons or daughters will become president.

The smallness of the current republican vision as driven by elites is notably informed by the rigidity of the amendment mechanism in the Australian Constitution. Only eight out of forty-four referendums have been successful since 1901, and none has been successful in the past forty years. The “frozen continent” has nurtured a culture of timidity when it comes to constitutional vision, especially structural reform. On constitutional reform, the state is willing to countenance a referendum if it means a “sure thing.” That is to say, tinkering and symbolism: symbolic recognition of Aboriginal and Torres Strait Islander peoples and a minimalist form of republicanism.

But here’s the rub. The elites shrinking themselves to match the conservatism of the amendment mechanism is a fundamental misreading of the Australian people’s appetite for structural reform. The political elites are gaming the referendum process based on a crude calculation that of the eight successful referendums, the majority had bipartisan support. The equation, therefore, is that bipartisanship is what can drive a successful referendum in the modern age.

There are a number of problems with this. First, it is based on an assumption that the Australian people delegate their judgment on a proposal for amendment to politicians. That may have been the case forty years ago, when the last successful amendments were made. It may not be the case today. The faith that Australians have in the judgment of their democratically elected representatives may not be as fervent as it was forty years ago. Given the reform inertia that has existed in the country for well over a decade, whether it be on productivity, climate change, Indigenous affairs, financial regulation or infrastructure, it is a huge task to convince Australians that reform-lite, professional politicians have their best interests at heart. Second, for better or worse, we live in an era of social media. No referendum has been held for forty years. It is easy to sneer about Twitter, as thought leaders and politicians and journalists tend to do when it suits them. But Twitter and Facebook have opened up the political space for contestation of national narratives in a way that our professional political parties and the media do not do so well. It has aided the expression of Aboriginal opinions and an Aboriginal worldview that previously were ignored by the mainstream media.

Constitutional recognition is a perfect example of the lack of curiosity in the media when it comes to the Indigenous polities of the nation. The notion that the Uluru Statement was unexpected, the pearl-clutching of the political elite lamenting the non-endorsement of race provisions by Uluru – without actually reading the Referendum Council report – the suggestion that the dialogues should be rerun, or the idea that Noel Pearson was the puppetmaster of the process – these are but a sample of the nonsense journalism we had to contend with after Uluru. In the Twitter era, political elites can snark about community opinion on social media, but they cannot control it and they can no longer control national identity. I saw political elites refer to Aboriginal contestation of Anzac Day apropos the frontier wars as revisionist history. Really? Historical fact as revisionism? Twitter has been unequivocally effective in allowing Indigenous peoples to rein in the recognition debate and to promulgate competing ideas of Australia Day, Anzac Day and many other things.

My procrastination on penning this reply to McKenna lasted until a few things happened to counter my fatigue. Richard Flanagan at the National Press Club happened. Most fascinating was the lack of questions from journalists on the Uluru Statement: true to form. Then the debate over a Captain Cook monument erupted. McKenna writes of Kurnell in his essay. A government that rejects something like the Uluru statement and then deploys language like “shared history” and “the view from the ship and the view from the shore” to clothe its hypocrisy is hard to stomach. This is the government that discredited a dialogue process led by the cultural authority of the country, including the Tasmanian Aboriginal Corporation, the Kimberley Land Council, the New South Wales Aboriginal Land Council, the Northern Land Council, the South West Aboriginal Land and Sea Council, the Federation of Victorian Traditional Owner Corporations, the North Queensland Land Council, the Central Land Council, the Aboriginal Legal Rights Movement and the Torres Shire Council. This is the government that rejected improved Aboriginal participation in the democratic life of the state and truth-telling as promoting inequality and antithetical to Australia democratic values. The announcement of a Cook monument was received by many Aboriginal people for what it is: a taunt.

The Uluru Statement contains an Aboriginal and Torres Strait Islander version of Australian history, called “Our Story.” It states:

The Crown had made promises when it colonised Australia. In 1768, Captain Cook was instructed to take possession “with the consent of the natives.” In 1787, Governor Phillip was instructed to treat the First Nations with “amity and kindness.” But there was a lack of good faith. The frontier continued to move outwards and the promises were broken in the refusal to negotiate and the violence of colonisation.

There cannot be a monument to Captain Cook without a monument to the First Nations and the massacres that followed. It will be for the traditional owners of that country to lead those negotiations, but, as Professor Marcia Langton tweeted, their countrymen and countrywomen are watching with great interest: “I hope there will be a memorialisation of the first people whose lives changed irrevocably. They are of far more consequence than #CaptainCook.” McKenna agrees: “James Cook’s eight days at Botany Bay have been made to appear more significant than millennia of Indigenous occupation.”

At the dialogues around the nation, the stories of the killings were shared. Particularly moving were the stories of the sadness. Old people spoke of the monuments erected across Australia honouring explorers who opened up the frontier without even so much as a nod to the First Peoples whose lives were irrevocably changed. Here is a story from Ross River:

Participants expressed disgust about a statue of John McDouall Stuart being erected in Alice Springs following the 150th anniversary of his successful attempt to reach the Top End. This expedition led to the opening up of the “South Australian frontier” which lead to massacres as the telegraph line was established and white settlers moved into the region. People feel sad whenever they see the statue; its presence and the fact that Stuart is holding a gun is disrespectful to the Aboriginal community who are descendants of the families slaughtered during the massacres throughout central Australia.

The desire for a factual picture of Australian history is not an irredentist movement. Truth-telling about history is inextricably linked to wellbeing and health. While those who have fared well from the status quo lead a chorus of strengths-based discourse, the statistics speak for themselves. Many of our polity are struggling. It makes no logical sense to compare university graduation rates to incarceration rates. Such a glib observation ignores the structures that drive incarceration. Conversely, graduation rates have been the product of substantive equality, including measures such as special entry into universities. Apples and oranges.

There are those, black and white, who have disavowed the Uluru Statement because they have skin in the game in maintaining the status quo. Hallowed access to parliamentarians, funding that requires no acquittals, funding that requires no formal Indigenous Advancement Strategy submissions, ministerial patronage. These advocates of the status quo are stakeholders in a massive, billion-dollar industry that feeds off Indigenous disadvantage and the abundant snake oil concocted to remedy it. Ten years after Closing the Gap, the status quo ain’t working. Structural reform – power – in Australia’s constitutional framework is the only way to ameliorate the powerlessness. Make no bones about it, the Uluru reforms were clever, sequenced reforms driven mostly by the people who have not benefited from the gilded cosmopolitanism that some have. Also, they were a collective expression of self-determination by many First Nations. The individuals who sought to undermine this consensus demonstrate the effectiveness of the settler state in leveraging skin in the game.

The dialogues are an Australian innovation. And as McKenna so eloquently and powerfully captures, many Australians view it that way. The polling routinely suggests a majority of Australians will support the first step, a voice to parliament, at referendum. It is logical. It is fair. It is modest. It has always been the case that the Australian people are light-years ahead of the politicians on reconciliation. Not in the skewed Australian notion of the word, but in the nuanced, on-the-ground, gritty nature of coexistence. After all, we live among one another.

I have had the experience of widespread consultation with Australians and Indigenous peoples twice in seven years: with the Expert Panel on Indigenous Constitutional Recognition in 2011 and again with the Referendum Council in 2016–17. One issue that the mob raised during 2011, which was raised again in 2016–17, was treaty and sovereignty and a voice to parliament. The proposal for a voice was new but unsurprising, given the voicelessness and powerlessness of many communities in the past decade, following the termination of ATSIC. The truth-telling that emerged from the dialogues organically in 2016–17 linked back to the sentiment expressed in 2011 by non-Indigenous Australians – ranging from graziers in Mount Isa and Longreach to urbanites across the nation – that Australian history was not taught well in schools, and that Australians hankered for a richer story of nationhood than merely the stories of war.

As Anzac Day approached, I felt unsettled, like many Aboriginal people. I attended the Annual Ted Larkin Memorial Oration at the National Rugby League headquarters in my role as an Australian Rugby League Commissioner. Edward “Ted” Larkin was a former rugby union player who became the first secretary of the New South Wales Rugby League. He saw active service in World War I and was killed on the first day of the Gallipoli landing.

I did not expect the evening to have such a profound impact on me. I was seated next to the most fascinating and marvellous man. An elegant man. A rugby league man. A military man. The closing remarks at the Ted Larkin Oration were given by this man, Lieutenant Colonel John Sullivan AO, eighty-nine years of age. We bonded over rugby league, Greg Inglis and Johnathan Thurston and his beloved Narrandera Lizards Rugby League. This man, whom I did not know until this night, gave the most extraordinary speech on Australian identity I have ever heard. He conveyed the Anzac story in the most inclusive and generous way – in a way I had never heard before. The Anzac spirit is something that is routinely presented in an exclusive way by the media. For a woman, it is often masculine. For an Aboriginal person, it is almost always white. Yet this veteran spoke so lovingly of all the many dimensions of Anzac. He spoke of rugby league as the greatest game of all, from which many of the ranks of soldiers were drawn across New South Wales and Queensland during the wars, working-class men. He spoke of our NRL players as the world’s last gladiators – it is a tough, tough sport, rugby league – and he lauded the players for the Anzac spirit they demonstrated on the field week in and week out – their discipline, inclusiveness, tolerance.

And then he spoke singularly and meaningfully about Aboriginal people. He spoke of the relationships and friendships among Aboriginal rugby league players and non-Indigenous rugby league players. He spoke of the importance of Indigenous players to the game and those black diggers who returned from war to a nation that had formal racial segregation through protection acts and did not recognise them. He spoke of the courage of coexistence. And finally, he spoke about the horrors of war: that war must never be glorified and that the Anzac spirit must embrace the values of diversity and tolerance because, above all, the Anzac spirit is about love.

Extraordinary old bloke. Such generosity. Such inclusiveness. Such leadership. Love. Who dares utter such a word on the eve of Anzac Day? Love. I was blown away. This, too, is the story of Uluru. Uluru is about love. In one evening, my two worlds, which seem so far apart, rugby league and constitutional law, collided. The coming together after a struggle.

What’s the risk of the status quo? So many refer to closing the gap, but it is not that. My friend and colleague at UNSW Law, Professor Rosalind Dixon, hit the nail on the head when she addressed the NSW Bar Association on the Uluru reforms:

The risk in the status quo is a whole generation of Aboriginal and Torres Strait Islander peoples will entirely lose faith in the process of legal and constitutional reform. I say that as someone who has the great privilege of teaching some people who are the leaders of that generation and I can say to you from what they have said to me, there is a real sense that this is the last chance … we get for a generation to fix this and so that the small risk that one runs of changing things with, you know, downstream uncertainty has to be weighed against the absolutely certain risk of disillusioning and disappointing a whole generation of leaders and fellow members of our community.

This is what worries me. The risk of rejecting this modest reform is significant: a generation of Australians who lose faith in a system that is meant to reform and is built to evolve.

I never thought of myself as a leader, only as a constitutional lawyer. But on the day of Turnbull’s rejection of the voice to parliament, I was rushing to the law school for the awarding of a prize to a former UNSW law student, Dylan Lino, who had written his thesis at Melbourne and Harvard on Indigenous recognition. On the way, we listened to Noel Pearson thunder on Radio National at the callous and ruthless way the Turnbull government had rejected Uluru that very day and leaked it to the Courier-Mail. Not a single phone call had been made to anyone involved.

The driver was a young Aboriginal lawyer with fuchsia hair, whom I had invited to participate in the dialogues. She had to pull over, her eyes flooding with tears, sobbing at the rejection, distressed by Pearson’s distress. For the first time, I understood leadership. I was heartbroken at her heartbreak. I could see her faith in the rule of law, fairness and equality – all the important characteristics of our public law system – drain from her face. I spoke to Noel and Pat about how to manage the heartbreak of the young Aboriginal people we took on this journey: the junior lawyers, the facilitators, the working-group leaders, the scribes and note-takers, the event organisers, the caterers … all of these young Aboriginal and Torres Strait Islander kids full of hope, who, unlike us, had never heard the settler state say, “No.”

The self-interest of the government wanting to rush to a referendum on section 44 was not lost on anyone, nor was that of the republican movement, straight out of the gate after Turnbull’s rejection to claim that theirs would be the next referendum. It was as if Uluru did not happen. It is as if recognition has stood still. It is 1999 all over again.

It is a fact that Australia achieved true independence from Britain on 3 March 1986. McKenna puts it this way:

We have already “broken away” and become an independent nation except in two crucial respects: we are without an Australian head of state and we have yet to anchor our vision of popular sovereignty in the continent’s Indigenous antiquity, as the Uluru Statement from the Heart invites us to do.

For the first time, a state mechanism, the Referendum Council, adopted the Aboriginal tradition of storytelling to influence the hard-edged contours of the Australian state that has for too long resisted the footprint of the cultural authority of this country and has been the poorer for it. So do yourself a favour: don’t just read McKenna’s fine essay, go and read the Referendum Council report. The Uluru Statement from the Heart is an invitation to you: to alleviate the need for us to be the buyer and the seller in this transaction. Mark McKenna has taken up the invitation and met us at base camp, as have so many: Alan Jones, Bill Shorten, Greg Craven, Fred Chaney, Sam Mostyn, Fiona Stanley … and I hope Lieutenant Colonel John Sullivan AO.

McKenna’s thesis – that the Australian republic is an Aboriginal issue – is, following Uluru, an idea whose time has come. Let’s not render another generation of Aboriginal and Torres Strait Islander youth disillusioned. Let’s show them the potential of the Australian state when we work together, the people of this country, as a team. If we don’t lead the way, the politicians maintain the status quo.


Megan Davis, a Cobble Cobble woman from Queensland, is a pro vice chancellor and professor of law at the University of New South Wales. She was a member of the Referendum Council and the Expert Panel on the Recognition of Aboriginal and Torres Strait Islanders.


This correspondence discusses Quarterly Essay 69, Moment of Truth. To read the full essay, subscribe or buy the book.

This correspondence featured in Quarterly Essay 70, Dead Right.


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