TONY JONES, PRESENTER: Tonight's guest is Noel Pearson, the chairman of the Cape York Partnership and author of the latest Quarterly Essay, A Rightful Place, where he argues that the idea of race in the Australian Constitution has had a distorting effect and deleterious implications for Indigenous peoples and he wants to change that.
Noel Pearson, welcome back to Lateline.
NOEL PEARSON, CHAIRMAN, CAPE YORK PARTNERSHIP: Good evening, Tony.
TONY JONES: Now, in a speech about the referendum at the recent Garma Festival, Bill Shorten said it would be an uplifting moment for all Australia to strike out old laws tainted by imperialism and prejudice and replace them with a safeguard in the Constitution about racial - against racial discrimination. Do you now think that is a bad idea?
NOEL PEARSON: Well, I was part of the expert panel that put a set of proposals out there for public consideration and one of those propositions was a non-discrimination clause in the Constitution. There's been quite a bit of debate over the last two years in relation to that. There's very clear opposition from constitutional conservatives about the idea of putting a rights provision in the Constitution that would outlaw racial discrimination. And in my Quarterly Essay, I've sought to understand exactly where the constitutional conservatives are coming from in relation to that objection and I'm starting a discussion about an alternative way of perhaps thinking about this.
TONY JONES: Do you think an alternative way, in fact putting that idea aside, is now necessary in order for the referendum to succeed? Is that a conclusion you've come to?
NOEL PEARSON: Well our Constitution can only be changed by a majority of voters in a majority of the states. It's the hardest constitution in the world to change. If you're really serious about changing it, you've got to have the objective of getting 90 per cent of the country on board. You can't aim for anything less than that, because even once in our history we got 65 per cent of Australians voting for a change and it didn't get up. The nature of the change you need - a majority of voters in a majority of the states - means that you've got to pitch your argument kind of to the most - the hardest end of the Australian political and social spectrum. And I've long held the view that you've got to try and find common ground with the 90 per cent position. And from an Aboriginal viewpoint, that means the most conservative end of Australia - political, rural, regional. They're the mob that you've got to try and get on board the bus. And ...
TONY JONES: So you reckon that group, perhaps a group greater than 10 per cent, would be the ones swayed by arguments against putting a clause against discrimination?
NOEL PEARSON: Yeah, they're the ones who have traditionally been very antipathetic to putting rights clauses in the Constitution. I was very convicted about the non-discrimination clause as part of the expert panel and I think the history of racial discrimination concerning Aboriginal people has been - is utmost in my mind and in the minds of Indigenous Australians. It has been a parlous history and we need a solution to that. We cannot have a continuation for the next hundred years of a policy and laws that are discriminatory against Aboriginal and Torres Strait Islanders. We need a solution to that.
TONY JONES: Yeah, I mean, taking aboard what you just said, there's already some distress emerging. I mean, Senator Nova Peris, the deputy chair of the bipartisan committee on constitutional change, said today you're only one of the 22 people on the expert panel advising on the referendum. She's suggesting you may be too influenced by the conservative arguments.
NOEL PEARSON: Oh, I surely am only one person. I just happened to write an essay exploring these questions and - but my argument is one of addressing ourselves to the reality of how our Constitution has changed. Majority of voters in a majority of the states. This can't be a - it's not like normally passing a law in Parliament: 51 per cent gets you over the line. This is a 90 per cent challenge.
TONY JONES: I guess Nova Peris seems to be saying that possibly the group that you're in a way appeasing could be less than 10 per cent; in other words, they could be in the group that still have 90 per cent and this tiny group oppose.
NOEL PEARSON: And the issue is that what can they mobilise? The fact is that they - any group, any influential politicians and public leaders and so on and thinkers that represent different parts of the Australian political spectrum, they mobilise a whole - whole constituencies.
TONY JONES: They seem to have mobilised the Prime Minister. He came out last weekend and said, "Any referendum proposal that becomes a de facto bill of rights is highly unlikely to succeed," in fact it would fail if it contained a guarantee on racial non-discrimination. Is that simply because the proposal - I mean, would it fail because the proposal does not have his support?
NOEL PEARSON: Well, obviously you want bipartisan support and you want the Prime Minister of the country championing it. I've always held the view that, particularly in relation to Indigenous constitutional reform, you need Nixon to go to China. This is a real challenge. In order to pitch your flag at the 90 per cent mark, you need Nixon to go to China and ...
TONY JONES: Or Abbott to go to Garma - something like that.
NOEL PEARSON: Abbott to go to Garma, because the business of getting a bipartisan commitment to this, we've got to transcend the kind of left-right polarity here, we've got to rise above it and search for common ground that works for those who treat the Constitution as sacred writ. And I always - prior to writing this essay, my view of - I gave very short shrift to these objections to what you would think is a fairly unobjectionable idea - surely there should be freedom from racial discrimination.
TONY JONES: But the constitutional conservatives, you argue, are motivated by a fear or an aversion to judicial activism. And it seems to be - the worry is you put symbolic words in the Constitution or some sort of a rights clause, that will change the way judges interpret the Constitution?
NOEL PEARSON: And that's the exercise that I've undergone. I've sought to understand the nature of that objection to judicial activism. And - so if you accept the objection to putting a rights-based clause in the Constitution and you understand their antipathy to judges deciding these questions - if you accept that then the question you put back to them is: well, what is the guarantee for Indigenous people in relation to the policies and laws that apply to them? If a judge is not going to uphold a protection in the Constitution, what is the alternative? And it seems to me - and the discussion that I'm trying to prompt in my essay is a discussion about, well, shouldn't Aboriginal people have a say over the laws and policies that apply to them? And that is the discussion we need to have.
TONY JONES: Yeah, I'll come back to that in a moment, but just on that particular issue, you do argue that the conservatives need to understand the Aboriginal position too, in the same way that you're attempting to understand their position. And you talk about these measures that should be put in place, but what measures do you have in mind? I mean, you want to start a debate about it. Do you have something in mind?
NOEL PEARSON: Well, firstly, in relation to the relatively non-controversial questions about getting rid of Section 25 - that is a pretty redundant part of the Constitution that anticipated that people might be precluded from voting on the basis of race. There seems to be a consensus about getting rid of Section 25. The second thing that we can have consensus about is recasting the parliamentary power in relation to legislating in relation to Indigenous people. So turn it from a race-based power to an Aboriginal and Torres Strait Islander people power - get rid of the idea of race and just talk about Aboriginal and Torres Strait Islander people. Those two things are relatively - I detect consensus across the divide about that.
TONY JONES: It's an interesting thing, this idea of taking race, taking the word race, taking the concept completely out of the Constitution. You argue this is not just a matter of symbolism, it'll have a psychological effect. What sort of psychological effect?
NOEL PEARSON: Well we understand something we didn't understand in 1967 as clearly as we do today and that is that there are no distinct human races. There is only one human race. And that idea was not clear in 1967 when we became citizens. And the fatefully wrong basis of our citizenship back in '67 was the basis of race. And so this will correct that. It will say that we are all human beings, there are no separate races. And to the extent that over the last 40 years we've laboured under this idea that there might be distinct races, I think we've carried a huge baggage with that over these past 40 years and it'll be very liberating for us to put race behind us. And to understand that the recognition of Aboriginal and Torres Strait Islanders is because of their Indigenous identity and connection with this continent, not on the basis that they're somehow a distinct human species or something. And so I - and this is an argument that really I didn't have myself; I heard my fellow expert panel members make this argument very strongly and I've become very convicted about it, that it'll be psychologically liberating for Australians to put race behind us as a relic of our constitutional past, and in the future, if there is social and economic provisioning for Aboriginal and Torres Strait Islanders, it should be on the basis of need, not race. It's because we're needy Australians, just like Muslim Australians or white Australians might have social and economic needs, so too do certain Aboriginal and Torres Strait Islanders. Let's move from race to need as the basis of government action.
TONY JONES: OK. You've - we'll go back to something you eluded to a moment ago and I put you on pause on this subject, but you've argued that to complete the reforms, the Government will need to establish a new body to make sure that Indigenous people get a fair say in the laws and policies that are made about them. What sort of body do you have in mind?
NOEL PEARSON: Well, as I say, the discussion that I'm provoking here is one of saying, "Right, if the conservatives are saying judges should not be empowered to rule on whether certain laws are discriminatory or not or desirable or not, they don't like activist judges, well what's the alternative then?" And the alternative, it seems to me, is that Aboriginal people should be in a position to say what laws and policies apply to our own people. We should be able to self-determine that and we should focus our minds on how to solve this democratic deficit we have in relation to the role of Aboriginal and Torres Strait Islanders in this, our own country.
TONY JONES: We had a body once before called ATSIC. Are you talking about reinventing a new ATSIC or something different?
NOEL PEARSON: Something different, absolutely.
TONY JONES: What sort of different?
NOEL PEARSON: It's a capacity to be involved in advising the parliamentary process in respect of laws and policies that apply to our people. You see, every nation has got to come to grips with these democratic questions and the democratic question for us here in this country is that we have a three per cent mouse and a 97 per cent elephant. And what kind of fulcrum do we need in our constitutional structure that at least enables the mouse to determine what laws and policies should apply to us as an Indigenous people? Our democratic process should empower us and enliven us to do that.
TONY JONES: But you are talking about some sort of representative body, are you?
NOEL PEARSON: Yes, I think that's where the discussion should be focused.
TONY JONES: And with elections attached to it, sitting alongside the present Parliament?
NOEL PEARSON: And it's important to see that these issues - you should see it like a pyramid, the top part of which is the Constitution and then there's legislation to give effect to whatever hooks you have in the Constitution and then you have agreements and then you have programs. So, we need to have a look at the whole pyramid and really the important thing about the Constitution is to enable action further down the pyramid and so on.
TONY JONES: OK. So, fundamental question then: would there have to be a constitutional change to allow the existence of this body? Would it be empowered, in your mind, by the Constitution?
NOEL PEARSON: Absolutely. And I see this as the basic - compromise is, in my thinking, a weak word in some interpretation, you know. When people talk about compromise, just split it down the middle or cut it in half or something, that is not what I'm talking about here. My proposition to the conservatives is to say, "Right, we listen and we hear your objections to judicial activism. What is the alternative to that which dignifies our concerns about the fact that we've gone through a history of exclusion and discrimination? And we want to be guaranteed that in the future that that history is not repeated and we want to be able to have a say over the laws and policies that apply to us. We want a democratic involvement in the laws and policies that apply to us." And so, we want to be in the tent, we want to be in the life of the nation, contributing to the process whereby these things come to affect our communities, our people and our futures.
TONY JONES: Noel, we're nearly out of time, but I've got to ask you the one obvious question. This is a fundamental change to the Constitution, building a new body to give - to empower, somehow, Indigenous people to have a say in what happens to them. Have you actually run this past the Prime Minister, who you've been advising?
NOEL PEARSON: Oh, I've written an essay and he is as free as anybody to read it. And ...
TONY JONES: But this - effectively tonight, this is the first time he would have heard about it? Is that what you're saying?
NOEL PEARSON: Absolutely. Yeah, absolutely. I've put it out there for public discussion. I understand that I am only one Australian and indeed only one Indigenous Australian with a view. I don't expect my view to be especially taken by anybody. But I think it's one that resonates with a long-standing concern. There's a long history behind this of Aboriginal people through the course of the 20th Century saying, "We want to be heard in relation to our own affairs," and the opportunity now is to understand that perhaps there is a trade here, there is a trade here in relation to whether upholding a standard that judges supervise versus one whereby Parliament receives the self-determination advice of Indigenous peoples about what affects them.
TONY JONES: Noel Pearson, it's fascinating always to speak to you and I suspect this argument will definitely feed into the public and policy debates. Thank you very much.
NOEL PEARSON: Thank you very much, Tony.