THE HIGH ROAD

Correspondence

Shireen Morris

Laura Tingle is right that Australians should think more deeply about what our nation can learn from New Zealand. Her essay illuminates the parallel histories of two similar yet contrasting countries, grappling with comparable social, economic, political and cultural challenges in different ways. Most saliently for my work, New Zealand has implemented structural mechanisms for the recognition of Māori people, culture and heritage in ways that can provide inspiration for Indigenous constitutional recognition in Australia.

On Waitangi Day in 2020, Labor Opposition leader Anthony Albanese tweeted:

Seven years prior, in 2013, former prime minister Tony Abbott (then the leader of the Opposition) similarly invoked New Zealand as a positive role model for Indigenous recognition. “We only have to look across the Tasman to see how it all could have been done so much better,” Abbott said in a speech to parliament. “Thanks to the Treaty of Waitangi in New Zealand, two peoples became one nation.” Here was conservative Abbott using the “T” word, pointing to New Zealand and calling on Australia to do better at coming to grips with our colonial history. It was no Redfern speech, but it was a moment of principled compassion and empathy. It didn’t last.

In 2017, when Malcolm Turnbull dishonestly rejected the Uluru Statement’s call for a First Nations voice as a “third chamber of parliament,” Abbott also abandoned his support. For both leaders, compassion unfortunately gave way to political calculation. The Uluru Statement was sacrificed midst two men’s self-interested tussle for power. At least Barnaby Joyce, who originally coined the misleading “third chamber” phrase, subsequently admitted the mischaracterisation and apologised “unreservedly.” There has been no such honesty from Abbott or Turnbull.

Tingle is right that Australia was handed a momentous, generous gift with the Uluru Statement: the opportunity to undertake substantive yet modest and constitutionally conservative reform, to empower Indigenous peoples with a voice in their affairs. The proposal would give effect to decades of Indigenous advocacy for greater self-determination, while addressing conservative concerns about upholding the constitution. But as Tingle puts it, instead of accepting the gift, Australian political leaders “comprehensively stuffed it.”

Despite that debacle, debate has rolled on. Public support for a First Nations voice has since grown. The 2020 Australian Reconciliation Barometer found that 81 per cent of the general community support the proposal (up from 77 per cent in 2018), despite past government negativity. Scott Morrison came to power promising an end to the “Muppet Show” and vowing to govern for the “quiet Australians.” Given that polls indicate ordinary Australians can see the sense in Indigenous people having a constitutionally guaranteed say in laws and policies made about them, hopefully Morrison can succeed where Turnbull and Abbott failed. With goodwill and leadership, Morrison could be the conservative Nixon that can take this cause to China.

Lessons from New Zealand can assist in forging a path forward. In 2014, I was lucky enough to organise a research delegation to New Zealand with the Cape York Institute. We were awe-struck by the difference in political attitudes towards Māori recognition, displayed by both progressives and conservatives alike. I asked the then attorney-general, Chris Finlayson: “How is it that conservatives here respect the treaty and contemporary settlements so much?” He explained that conservatives believe in the rule of law and property rights. If the Crown breached Māori rights in the past, then it is only right that those matters are justly settled. It is about behaving with honour. Tingle correctly homes in on this word: honour. A quality too often missing in Australian politics.

Yet New Zealand demonstrates how political leaders can marshal difficult, painful and polarising debates about national identity and history in ways that diffuse, rather than inflame, the contemporary culture wars. Keating’s historic Redfern speech was a masterpiece of oratory and an unparalleled call for Australians to have empathy in such matters. However, in retrospect, his repeated evocation of “we” – “We committed the murders. We took the children …” – may not have been the best way to facilitate consensus-building conversations about reconciliation. “We” can be morally confronting and can unhelpfully raise defences. It can be interpreted by some as an allocation of present-day blame for past wrongs. By contrast, Kiwis use the language of “the Crown” more than Australia, especially in matters of reconciliation. “The Crown” denotes the state, the government and political institutions. The Treaty of Waitangi, for example, was an agreement between Māori chiefs and the Crown, and breaches of the treaty are dealt with by the Crown. This language has arguably helped alleviate the sense that responsibility for past injustice must be borne by the present public: instead, “the Crown” takes responsibility and seeks to rectify past wrongs. In New Zealand, as in Canada, the idea of “the honour of the Crown” imbues dealings between Indigenous peoples and the state with moral gravitas and honour. This honour can similarly be ignited in Australia. We need not use the language of “the Crown” if it doesn’t suit us. But political leaders can adopt language demonstrating that the Australian state is taking institutional responsibility for our shared history – to forge a fairer future on behalf of all Australians.

New Zealand teaches us that Indigenous constitutional recognition requires more than a static, symbolic statement. It requires more than a new preamble to the constitution, and more than a two-word change to the national anthem. True recognition involves dynamic, constitutional and structural reform to the relationship between Indigenous peoples and the state. Such reforms for Māori recognition and empowerment have been achieved over time. As Tingle explains, the Treaty of Waitangi was signed in 1840, but its promises were often breached by the more powerful Crown. As attitudes evolved, however, parliament pursued reforms such as the national Māori Council to ensure Māori a voice in Māori affairs and policy (similar to a First Nations constitutional voice), the Waitangi Tribunal and settlement processes (similar to the Uluru Statement’s call for a Makarrata Commission to oversee agreement-making and truth-telling) and the gradual consolidation of Māori-reserved seats in parliament. As part of the Waitangi settlements process, formal Crown apologies are given for past wrongs – delivered in both Māori and English. Restitution can include some financial redress (though this is never commensurate to the real losses suffered) but also cultural recognition, including dual place-naming. The cultural component of the treaty settlements has propelled recognition of Māori heritage in a tangible way. The Māori language has been recognised as a taonga (treasure) under the Treaty of Waitangi, and as an official national language; the Māori Language Commission is charged with Māori language revitalisation.

New Zealand also demonstrates that rousing symbolic expressions can be important for national unity and pride, but they must sit alongside and complement the necessary substantive, structural reforms. Indeed, New Zealand has pursued both: the necessary institutional structures for Māori empowerment, complemented by the symbolic power that comes with true cultural embrace. As Tingle identifies, Māori culture is increasingly seen as New Zealand’s culture. Witness the way in which variations of the haka are performed by New Zealand sports teams, including the All Blacks, as an expression not only of Māori culture and heritage, but also of New Zealand culture and heritage. By contrast, a few seconds of an Aboriginal war dance performed by Adam Goodes in 2015 prompted widespread contention in Australia. By some it was taken not as a celebration but as an affront, demonstrating that Australia remains uneasy with our national history and heritage.

From New Zealand we can learn that recognition can be mutual and cultural embrace can flow both ways. Pākehā embrace of Māori culture found a dignified role model when the New Zealand prime minister donned a traditional Māori cloak to visit Buckingham Palace, and when she gave her daughter a Māori middle name: Te Aroha, which means “love.” Of the cloak, Māori weaver and lecturer Donna Campbell remarked: “To wear something that is so intrinsically of this place here and for her to wear it at that event, knowing that she would be photographed from every angle – that’s a real acknowledgment of her relationship with the Māori people and with New Zealand.” Māori experts advised this was not cultural appropriation, but a gift of honour bestowed on dignitaries. In Australia, Ken Wyatt, the first Indigenous Minister for Indigenous Australians, donned a kangaroo-skin coat to mark the occasion of his appointment. But how long will it be before non-Indigenous Australian politicians see fit to truly honour this country’s First Nations heritage and implement the structural reforms that would see such heritage flourish – beyond the token words of Ngunnawal that Turnbull delivered in parliament the year before he rejected the Uluru Statement? Symbolic gestures mean nothing if not accompanied by substantive reform.

There are also constitutional differences that must be acknowledged. Achieving Indigenous constitutional recognition has arguably been easier in New Zealand than in Australia because of key contextual differences. Australia has a written, entrenched and rigid constitution, which can only be amended through a “double majority” referendum. By contrast, New Zealand’s constitutional arrangements are not entrenched but enacted through ordinary legislation and conventions: a strong form of parliamentary sovereignty prevails, which entails constitutional flexibility. This has facilitated structural adaption and reform with greater ease. For example, New Zealand abolished its provincial system in 1877 and its upper house in 1950 via ordinary legislative change. It has also facilitated reforms for Māori recognition over time, in line with changing political attitudes.

Another factor is the relative size of the indigenous populations. At 15 per cent of the population, Māori can wield a stronger political voice to advocate for such reforms. As a significant minority, they are probably harder for political leaders to ignore than Indigenous people in Australia, who represent 3 per cent of the overall population. A 3 per cent minority will always struggle to be heard, which makes achieving a constitutionally guaranteed First Nations voice all the more important in Australia – it should not be possible to abolish the institution as soon as it becomes politically unfashionable (as happened with ATSIC), although of course its institutional design should legislatively evolve as needed. In New Zealand, the existence of institutions like the Māori Council and reserved Māori parliamentary seats are anchored in principles of the treaty, which forged a sense of partnership between Māori and the Crown. Given Australia lacks a recognised founding treaty establishing such principles, a constitutional guarantee is needed to ensure a First Nations voice carries permanency and authority. Of course, the extreme minority status of Indigenous people in Australia also exacerbates the vastness of the comparative reform challenge. The Indigenous 3 per cent must persuade the general population that constitutional reform is a good idea. Yet this should not just be the job of Indigenous people: non-Indigenous people must help champion this cause too. But persuading the people is not enough. In addition to requiring a double majority referendum, section 128 of the constitution also makes parliament the initiator, and thus the gatekeeper, of any constitutional change. In reality, the roadblock to meaningful constitutional recognition in Australia is parliament, not the people.

On breaking through parliamentary blockages on progress, New Zealand also offers ideas for discussion. As Tingle notes, mixed-member proportional reforms were implemented in the 1980s after two “referendums” – what we in Australia would term plebiscites. These were ordinary political initiatives governed by a legislative framework, rather than constitutionally required referendums for constitutional change, as in Australia.

New Zealand regularly holds binding and non-binding referendums on national reform issues. In 2014–16, referendums were used to enable citizens to choose a national flag. In 2020, a non-binding referendum on the legalisation of cannabis was rejected by New Zealanders, while a binding referendum on euthanasia received strong support. Similarly, New Zealand’s 1993 Citizens Initiated Referenda Act means any ordinary citizen can start a petition to ask for a nationwide referendum, and non-binding referendums can be held on any subject. Non-constitutional referendums are not totally foreign in Australia: the same-sex marriage postal survey of 2017 was not the first time Australia experimented with a non-constitutional popular vote for a national policy question. In 1977, a popular vote was used to enable Australians to choose a national anthem – in contrast to the prime minister’s perplexing unilateral decision to change its lyrics from “young and free” to “one and free” on New Year’s Eve. Could a similar public vote, or even a citizen-initiated public vote, be a circuit-breaker on other important national issues – perhaps on a First Nations constitutional voice? Such a mechanism would not be binding on parliament (just as the same-sex marriage vote was not binding), but it could nonetheless help generate political pressure conducive to parliamentary action. A pre-referendum plebiscite may help persuade parliament to initiate the constitutional referendum.

Political leaders who want to connect with disengaged citizens should seriously consider such ideas. Recent research shows Australians want greater participation in government and in policy and law formation, especially on constitutional issues and matters of principle with which they can readily engage. The strongest support for greater direct participation is evident among politically disaffected citizens, suggesting the potential for citizen-based deliberation to enhance trust and participation in formal politics. With satisfaction with Australian democracy at historic lows and trust in political institutions in decline, perhaps Australia should take a leaf out of New Zealand’s book and give citizens a more direct say in policy questions.

I think Australians would tell politicians to give Indigenous people a constitutionally guaranteed voice in decisions made about them. Because Australians understand it is the honourable thing to do.

Shireen Morris is a constitutional lawyer and senior lecturer at Macquarie University Law School. She is the author of Radical Heart: Three Stories Make Us One and co-editor of A Rightful Place: A Roadmap to Recognition and The Forgotten People.