The Pearson Agenda

On 27 January, Noel Pearson outlined his current thinking on the state of Indigenous affairs in a speech to the National Press Club entitled ‘Hunting the radical centre of Australian policy and politics’. It was a typically impressive argument, rhetorically forceful, and loaded with stimulating ideas. Much of the subsequent media comment was derived from the question and answer session which followed.

Pearson stepped carefully through the political maze, quoting Paul Keating, praising Tony Abbott, and expressing his faith that Malcolm Turnbull has the expertise and experience to guide a referendum on constitutional recognition for Indigenous Australians to a successful conclusion.

However he also spoke bluntly of his view that there is a crisis in Indigenous policy, that the current system involving ministerial and departmental oversight is structurally flawed, and expressed his deep scepticism that this system can fix the problems we confront as a nation in the Indigenous affairs domain.

Pearson based his argument around two case studies, the moves toward constitutional recognition, where he outlined his strongly held view that the content of any proposed change had to be structured around the ‘radical centre’ of the political landscape if it was to have any chance of success.

While the challenge of amending the Constitution is clearly in the forefront of Pearson’s mind (as it is in others), I came away from his speech with a stronger sense than I had previously appreciated that his deeper aspiration and objective is to find the achievable settlement which places relations between Indigenous and non-Indigenous citizens on a sure and sound footing. If this is the case, it makes amending the Constitution not the objective, but the means to the end. Intriguingly, and notwithstanding the undoubted significance of the Constitution to our national sense of identity and to Indigenous citizens aspirations, such an interpretation opens up potential options and possibilities which do not rely on constitutional change.

His second case study was an excoriating critique of the lack of response by the Government to the Empowered Communities Report which both the Government and Opposition had signed up to prior to the last election.

A key element of the Empowered Communities report is a proposal for a legislated Indigenous Policy Productivity Council which would act as a referee between governments and Indigenous interests in driving and implementing key structural reforms. The Empowered Communities report outlines at a high level the broad shape of the proposed Council.

Pearson is on the record as having moved away from the recommendations of the Expert Panel established by the Labor Government, in particular the recommendation for entrenching the prohibition on racial discrimination, and instead has proposed in conjunction with a number of conservative constitutional experts the inclusion in the constitution of a provision requiring the establishment of a new institution which ensures Indigenous Australians are engaged and involved in laws and policies related to them. As he argued in his 2014 Quarterly Essay, A Rightful Place:

Constitutional recognition could therefore include the removal of the race clauses and the insertion of a replacement power to enable the Commonwealth parliament to pass necessary laws with respect to indigenous peoples, and incorporation of a requirement that indigenous peoples get a fair say in laws and policies made about us. A new body could be established to effect this purpose, and to ensure that indigenous peoples have a voice in their own affairs (emphasis added).

While I am not aware that he has explicitly said so, it seems likely that Pearson sees the Indigenous Policy Productivity Council proposed in the Empowered Communities Report as the new body which he would like the Constitution to require be established.

In his Press Club speech, he talked about the 97 percent elephant (the wider Australian society) and the 3 percent mouse (Indigenous peoples), and argued that a fulcrum was needed allow the mouse to influence the elephant. He stated that the proposed new constitutionally required body was that fulcrum. Pearson has previously given at least one power point presentation where he represents the elephant and the mouse at either end of a plank, noting that the position of the fulcrum can in theory allow the mouse to lift the elephant.

These arguments reflect Pearson’s assumption that the challenges facing our nation in Indigenous affairs are deeply structural. For example he referred a number of times to the over-representation of Indigenous people in our prison system, and noted that the alternative view that these inequities were not structural would carry the implication that Indigenous citizens are somehow innately criminal.

In my view, Pearson’s analysis of structural inequality and thus the need for a structural solution is extremely persuasive. However, so too is the argument for constitutional prohibition of racial discrimination, especially in circumstances where the race power within the Constitution is proposed to be removed. Pearson is clearly of the view that priority ought to be given to that which he assesses to be achievable.

At present, we have no specific proposal on the table, and developing such a proposal is the task set for the Referendum Council recently established by the Government with Labor support. So I don’t propose to attempt to canvass the comparative substantive and tactical merits of the two proposals at this stage, while noting that in many respects this is the fundamental issue which will need to be decided.

While I consider the proposal for a new constitutionally endorsed institution to have considerable merit, particularly given that current arrangements appear not to be working, much will hinge on the detailed design of the body. Pearson’s proposal for the constitution to require the establishment of a new institution would presumably require the specifications of its functions at high level, but which does not determine its detailed membership and structure. Yet the establishment of such a body will involve both strengths and weaknesses, and these will be exacerbated or meliorated by its detailed design.

Its strengths include the reality that addressing deep structural imbalances such as we face in the Indigenous affairs policy domain requires of any such body a degree of independence and institutional gravitas which ‘constitutional status’ would bring. Moreover, to the extent that circumstances change over time, there would be scope for the design of the body, its membership, its focus, to be fine-tuned and adjusted in the light of experience.

Its weaknesses derive from the reality that there is no guarantee that the body once established will have, and importantly maintain over time, the necessary political and policy capacity to influence Indigenous policy outcomes at a national level. In terms of Pearson’s analogy, the fulcrum might end up in the wrong position along the plank, and not create the requisite leverage to lift the elephant.

Furthermore, one of the enduring lessons I have learned from my own involvement in the public sector is that in institution building there will always be unintended consequences and outcomes. These can be positive or negative, but inevitably mean that in public policy development aimed at addressing structural problems there is no ‘set and forget’ lever. It follows that there will always be a need for vigilance and proactive engagement, and this is particularly the case in Indigenous affairs. The involvement of individuals, whether as a minister, an engaged backbencher, a bureaucrat, an external lobbyist, or an engaged citizen can make a difference. It will be deeply important to the success of the Indigenous Recognition project that Indigenous Australians play active roles in all these contexts over the coming decades. In reality, no one of these roles is privileged over the others in terms of capacity to influence outcomes.

Looking forward, it appears likely that Pearson will use his position on the Referendum Council to build support within the Indigenous community for his proposed model, and to argue its credentials as comprising the best opportunity for achieving a substantive settlement or compact between our Indigenous citizens and the wider Australian community. He may well be right about this opportunity, and in contrast to alternative models, his model at least allows him to make the case to Indigenous citizens that there will be a substantive change to the institutional arrangements governing the interactions between national policymakers and the Australian Indigenous community. The challenge, as ever, will be in the detail. How to design a new institution which is more than a cypher or rubber stamp, and which has a capacity to keep governments across the nation honest, yet which is not so potentially  powerful that it is strangled at birth by its putative critics and opponents.

Pearson has exhibited quite extraordinary determination in pursuing his vision of a new settlement between the ‘triune nation’ of indigenes, anglo-saxons and neo-immigrants, both in terms of intellectual and conceptual advocacy and in terms of the pragmatics of political influence.

In my view, his vision is right; there is a need for a new settlement in the relations between Indigenous citizens, the state, and the wider community. There is a need for redressing structural imbalances. And there is a need to reassess the current political and policy structures governing the administration of Indigenous affairs.

Yet the challenges we face in driving the sort of reforms Pearson is seeking are considerable. Vested interests abound. Change is terrifying to many, and uncertain for most. Institutional and policy inertia is ubiquitous.

All things being equal, Pearson’s proposal deserves our support since it is clear that his vision is the most coherent and best developed alternative to the present deep-seated malaise in Indigenous affairs. However, the proposed model requires further detailed design development if it is to answer its potential critics. Should Pearson fail in his bid to drive fundamental change, it will be our failure too.

I want to end with two related observations. The first is that I disagree with the implied suggestion in Pearson’s comments to the Press Club in relation to the role of external change agents. Pearson has been extraordinarily successful in driving change and reform from outside Canberra. His work on welfare reform has changed the mindsets of policymakers over the past decade. His work on education reform is having a similar impact.

As mentioned above, our system of politics requires inputs from a range of sources, and I doubt that Pearson could have driven the focussed, sustained and extremely successful reform agendas he has over the last fifteen years from within the parliament without suffering the fate of most politicians, namely being diverted to other priorities (at best) or being worn down to mediocrity (at worst). Any implication that there is no capacity to influence policy from outside parliament should be rejected. There is certainly a place for young Indigenous leaders in mainstream politics, but there is as much of a need for younger Indigenous leaders to make a career in the bureaucracy, in the private sector, and importantly in the community and NGO sector.

My second observation is much more speculative, and may well be entirely wrong. I thought it was quite curious that Pearson failed to directly and unequivocally refute the suggestion that he might seek to enter Parliament. Admittedly, he left a strong and deliberate impression that he believed others, younger and more energetic, should pick up the baton. Yet the underlying thrust of his argument was that he feels that he has reached the limit of his capacity to influence and drive his vision for a new settlement (my term, not his) from outside parliament. That and his comments on the desirability of a new middle force in Australian politics left me wondering whether he might not have been approached by Senator Xenophon or others seeking new voices in parliament to throw his hat in the ring for election as an independent senator in the forthcoming federal elections.

Such a move, if successful, would certainly open up new opportunities for policy and political leverage in relation to constitutional recognition, empowered communities, and the shape and structure of Indigenous affairs generally. It would make the idea of the ‘radical centre’ a tangible reality in Australian politics, and bring much needed conceptual focus and quality to the national policy debate on Indigenous affairs.

In conclusion, Pearson’s quest for a new relationship at the core of our nation is widely shared across the Australian community. His vision of the path forward is cogent, pragmatic, principled and innovative. It deserves serious consideration, in terms of both its undoubted substantive merits and the more problematic tactical considerations relating to the pathway forward. It follows as night follows day that the deliberations of the Referendum Council over the next six months, and the subsequent decisions of Government which will inevitably fall on the Prime Minister Turnbull’s shoulders, will be the locus of hugely significant discussions for the future of Indigenous affairs and indeed the face which the Australian nation presents to the world.