Friday, 8 January 2016

Frank Brennan's book 'No Small Change'

The road to recognition for Indigenous Australians extends back at least fifty years, and looking forward appears to disappear into a chimerical haze beyond the horizon. Frank Brennan’s book provides an essential guide not just to that road, but to the journey Indigenous interests have travelled to date, and goes on to lay out his assessment of the challenging terrain ahead, and outlines his suggestions for best making progress.

I initially thought that this was two books disguised as one. The first, a history of the Council for Aboriginal Affairs established by the Holt Government after the successful 1967 constitutional referendum, and the second, an outline of the case for moderate change in the next phase of constitutional development in Australia. However Brennan successfully integrates the two narratives, along the way providing an indispensable repository of the cut and thrust of developments in both narrative spheres. Each part of the book is valuable in its own right, and together they make a persuasive case for Brennan’s argument.

In essence, Brennan argues that the Council for Aboriginal Affairs, comprised of Nugget Coombs, Barry Dexter and Bill Stanner, were able through bureaucratic persistence, successful infighting, and innovative policy work, to leverage the successful 1967 referendum to successfully initiate the implementation of a national land rights agenda, both in terms of national public debate, but importantly in terms of legislated outcomes, and that the momentum built by the Council provided the impetus for the legislation of land rights in the Northern Territory in 1976 and ultimately led to the High Court decision in Mabo and the enactment of the Native Title Act.

In effect, Brennan argues that the 1967 Referendum, which merely broadened the pre-existing race power in section 51(26) of the Constitution to remove the exception of Aboriginal people and thus allow the Commonwealth to concurrently legislate for Aboriginal people, was ‘no small change’, because it opened the gate to the overturning of terra nullius and the thus facilitated the present situation where Indigenous interests are now recognised as the owners of almost 30 percent of the continent’s landmass.

I found the historical account of the Council’s battles at the interface between the bureaucracy and politics fascinating, and the book lays the narrative out in extremely accessible terms. This is a very real achievement, and will provide all those interested in the history of Indigenous affairs policy with an accessible and essential starting point.

As for the broader argument that it was the 1967 referendum which allowed the Council to make the inroads it did, I agree that the evidence does not contradict this conclusion. However, there were times when it seemed that Brennan’s argument was a little tendentious, aimed at making the case for his perspective on current constitutional challenges as much as providing a retrospective perspective on the events of 40 years ago. Intuitively, it seems to me that the Menzies era approach to Indigenous land rights would not have withstood the tectonic shifts which took place in Australia with the election of the Whitlam Government in 1972, whether or not the 1967 Referendum had been passed, although clearly counterfactual hypothesis is an entirely fraught approach to historical analysis. Nevertheless, I am happy to agree with Brennan that the success of the 1967 referendum certainly facilitated the Commonwealth making the running on Indigenous Affairs once the time was right. Whitlam’s campaign slogan, Its Time, really did resonate in Indigenous Affairs.

The second half of No Small Change is devoted to the history of current attempts to design an acceptable formula for changing the Constitution to recognise Indigenous citizens.

Brennan provides an extremely useful survey of the various milestones along this more recent segment of the road to recognition. He argues that the Expert Panel appointed by the Gillard Government and chaired by Patrick Dodson and Mark Liebler overstepped in recommending that the constitution be amended to enshrine a prohibition on racial discrimination, and also considered that the Expert Panel’s recommendations that any head of legislative power for the Commonwealth be shaped to require positive measures (‘to secure the advancement of Aboriginal and Torres Strait Islander peoples’) would be counterproductive and unwise.

Along the way, Brennan cogently explains the pivotal role that the Racial Discrimination Act has played in the history of Indigenous Affairs. It is clear however that Brennan’s major concern is to argue against the inclusion of a provision in the Constitution prohibiting racial discrimination. He lays out an impressive number of arguments, from the purely pragmatic (the Australian people just won’t accept it) to the more legalistic (that it would require the Courts to consider political matters which are more appropriately the responsibility of Parliament).

Brennan’s position is that moderate change (that is, not including a prohibition on racial discrimination in any referendum) will have much greater chance of success, bearing in mind the super majority required for a successful referendum and the extremely poor record of successful constitutional change. In this sense, even moderate change will be ‘no small change’.

Moreover, Brennan implicitly argues that, like in 1967, even moderate constitutional change will open policy and political doors in the future which can be leveraged for the benefit of Indigenous interests, and thus even a moderate change will be ‘no small change’. As he notes, ‘what will matter is not so much the legal reach of the constitutional reform but the breadth and depth of the public sentiment in support’ (page 286).

There is a huge bias towards incrementalism deeply embedded within our political system. There is little doubt that this is how the Australian political system works most of the time. Most policy development and most political change are incremental. There is an intuitive attractiveness in incremental change, particularly if it is clearly in a positive direction.

However, there is a case to be made against moderate change. All change will have unintended consequences, and there is no guarantee that these will on balance be positive. Constitutional adjustments which make no change to existing institutional arrangements (as opposed to symbolic representation) open up risks without clear benefits. Moreover, for Indigenous interests to accept purely symbolic change to the Constitution will likely leave them in a weaker political position vis a vis the wider community as there will be a general consensus that Indigenous people have already  ‘been recognised’ and any future demands will be discounted by some and possibly by many as unnecessary or unjustified. No matter how deep public support for Indigenous aspirations is at the time of a referendum, there is no guarantee that widespread support will remain in place through time.

Thus there is a strategic calculus to be considered by the Indigenous leadership. What exactly do they wish to achieve in terms of structural or institutional reform over the next ten years? The indications are that leaders such as Noel Pearson, Marcia Langton and Professor Megan Davis are well aware that they will have just one shot at substantive change this generation, and that the shot ought not be wasted.

Of course, it may be that a constitutional prohibition on racial discrimination is not the ‘one shot’ Indigenous leaders wish to pursue. Moreover, if all that is on offer in terms of Constitutional recognition is symbolic change, then Indigenous leaders might decide to set it aside in favour of an alternative agenda, either within or outside the Constitution. One of the costs of the extensive constitutional change process followed to date, going back to 2007 without any apparent consensus having emerged, is that it has distracted political attention on issues that demand focussed attention from the political leadership of the nation.

For example, it is more than disturbing to consider that some $95m has been cut from the Commonwealth’s remote housing programs in the last two years, with the concomitant very real ongoing human costs of overcrowding and poor living conditions imposed on diffuse and politically voiceless remote communities, and this is done without any media attention, and minimal political debate. Meanwhile the political elites debate the terms of a referendum question and the major political parties keep kicking the can down the road.

No Small Change is full of perceptive insights, and is based on a deep understanding of the judicial contribution to policymaking in Indigenous affairs without being overly legalistic and technical. Notwithstanding my reservations in relation to the strategic consequences of Brennan’s overall argument in favour of ‘moderate’ proposal for change to the Constitution, I have no hesitation in commending his book to anyone interested in the history of Indigenous policy, the role of the Racial Discrimination Act in shaping Indigenous policy, and the current state of the debate on constitutional recognition.

Frank Brennan concludes No Small Change with a quote of Prime Minister Bob Hawke quoting Nugget Coombs. It is worth repeating here:

It is a politician’s job to recognise when the will is there and to do something but they also have a responsibility to create that will. It is never divisive to correct injustice. The fact of injustice is divisive and will continue to be until we correct it and learn to live with it. People who benefit from injustice will oppose this, but you don’t stop working for justice simply because people around you don’t like it.