Indigenous recognition and the honour of the Crown

by Damien Freeman, August 2016

Conservatives are inherently suspicious of change. I know this because I have an inherent appreciation of why conservatives are opposed to becoming a republic, adopting a bill of rights, or changing the definition of marriage.

They appreciate the importance of tradition, institutions, and values such as honour.

So conservatives have a duty to protect and uphold Australia’s Constitution—a constitution that has withstood the test of time.

They also have a duty to consider seriously proposals for constitutional recognition of indigenous Australians, because the values of our tradition impose upon the oldest institution in our system of government—the Crown—a duty to act honourably towards indigenous peoples.

This duty was embodied in King George III’s royal instructions to both Captain Cook and Governor Phillip. Phillip was instructed to treat the natives with amity and kindness, and to conciliate their affections. It persists in the duty of ministers of the Crown and the Australian Parliament, of which the Crown is a constituent.

Indigenous Australians seek constitutional change and other reforms because they seek fairer treatment. This is understandable, because, despite the best intentions of many people, Australian governments have repeatedly failed indigenous people. Nowhere has this been more profoundly demonstrated than in the recent Don Dale disaster.

The Crown has breached its duty as parens patriae in relation to those incarcerated children. But, in a larger constitutional sense, the very structures of Australian government mean that the Crown has continually failed in its duty to deal honourably with indigenous peoples.

Too many well-meaning policies have failed, and continue to fail. We must address this. Honour is at stake.

As the Chief Justice of Canada, Beverley McLachlin, explained in a 2004 judgement, “the honour of the Crown is always at stake in its dealings with Aboriginal peoples”:

In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably…

The honour of the Crown requires that these [Aboriginal] rights be determined, recognized and respected.  This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.  While this process continues, the honour of the Crown may require it to consult and … accommodate Aboriginal interests.

I do not support the insertion of symbolic language in the Australian Constitution. I agree with Senators James Paterson, Dean Smith and Cory Bernardi that the Constitution is a rulebook. It is not the place for symbolic statements, which the High Court may interpret unexpectedly. More importantly, a symbolic statement will do little to improve the dignity of our dealings with indigenous people.

What I do support is a modest machinery amendment of the kind proposed by Noel Pearson, Julian Leeser, Greg Craven and others, guaranteeing that indigenous peoples are consulted when lawmakers address indigenous affairs. This kind of amendment, as drafted by Professor Anne Twomey and supported by former Victorian Premier Jeff Kennett, would ensure Parliament receives non-binding advice and would not empower the High Court. It is a safe constitutional amendment in a way that symbolic insertions are not.

Such an amendment would uphold the integrity of the Constitution and the sovereignty of parliament. Moreover, it would be a dignified constitutional expression of the Crown’s duty to act honourably towards indigenous peoples.

Given the history of indigenous policymaking in this country, the Constitution should prescribe that indigenous people must be heard in decisions about their affairs.

The honour of the Crown can also find expression through agreement-making. Mechanisms enabling enhanced agreement-making could be enacted under legislation.

In New Zealand, the honour of the Crown is expressed through the Waitangi Tribunal settlement process. The Waitangi Tribunal is a dignified institution of the Crown, made up of Maori and non-Maori experts: judges, historians and academics. The settlement process allows histories to be told, stories shared, and resolutions found. It is a process generally supported by New Zealand conservatives. As a leading conservative explained, the settlement process demonstrates the Crown’s respect for the rule of law. It demonstrates honour.

In 1995, Queen Elizabeth II signed the Waikato Raupatu Claims Settlement Act 1995 incorporating it into New Zealand law. It was much like our own Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016, but Her Majesty personally delivered an apology, acknowledging past injustice. Waitangi Tribunal settlements also include language and culture recognition and dual place-naming. Such measures enable the Maori tribes and the Crown to re-define and reinvigorate their partnerships for the future. Australia could similarly enhance its own agreement-making processes.

Of course, all these ideas themselves must be the subject of inclusive discussion and negotiation. Compromise will be the key.

In The Forgotten People, former Governor-General Major General Michael Jeffery writes that “although we cannot undo the injustices of the past, we must as a nation seek a full and dignified reconciliation, based on mutual understanding and respect, and the ability to compromise where necessary.”

Indeed, the proposal for an indigenous advisory body in the Constitution arose out of compromise with constitutional conservatives. In his contribution to The Forgotten People, Julian Leeser MP writes that the proposed indigenous advisory body “sits most comfortably with the nature of the Constitution… it is the kind of machinery clause that Griffith, Barton and their colleagues might have drafted, had they turned their minds to it.”

There is a strong conservative case for indigenous recognition. At this point in the process, however, acting honourably means listening to what indigenous people say. When proposals emerge, they should be given careful thought and consideration.

The honour of the Crown is at stake in the debate about indigenous recognition. This should concern conservatives at next weekend’s Liberal Party conference in Western Australia.

The reforms proposed by Pearson and others offer a way of upholding the honour of the Crown in dealings with Indigenous peoples, without undermining the sovereignty of parliament or inserting problematic symbolic language into the Constitution. The proposals are worthy of serious consideration by conservatives within the Liberal Party.

Damien Freeman lecturers at Pembroke College, Cambridge and is a co-editor of The Forgotten People: Liberal and conservative approaches to recognising indigenous peoples (Melbourne University Press).