The National Apology, Constitutional Recognition and the Road to Reconciliation
The 2015 Australian National University Reconciliation Lecture
11 November 2015
The Honourable Kevin Rudd
26th Prime Minister of Australia
Seven years ago, I said to the Parliament of Australia that “there comes a time in the history of nations, that in order to embrace fully their future, they must fully reconcile with their past.”
Much has happened over the last seven years in our long journey of national reconciliation.
Much has not.
And much, much more needs to be done.
As seven is a number of biblical significance, both in the biblical narratives of creation and destruction, perhaps it is time to reflect on our progress and our prospects in this difficult but necessary journey we call “reconciliation.”
The Centrality of Reconciliation
We should begin by reminding ourselves why reconciliation is not optional, but necessary for our national future.
We should reflect on countries around the world where the reconciliation of their peoples has not been achieved. I do not believe we Australians want our children to grow up in divided societies. Divided societies do not happen by accident. They exist right around the world. They happen because political processes and economic forces allow them to happen. And the consequences are ugly.
As Australians, whatever our political affiliations, we are also challenged, and I hope animated, by a deep, inalienable, irreducible sense of justice. Justice, or whatever term we may use to describe it in the Australian vernacular, is embedded in our national DNA. It is this deep sense of justice that calls us to reconciliation, that calls us towards reconciliation, that calls us towards completing reconciliation.
If we were to deny ourselves the prospect of reconciliation, we would be denying these essential elements of our national spirit and character.
We would also be denying the better angels of our human nature.
Just as we would be failing to put to death some of the demons of our uncomfortable past in our dealings with Indigenous Australians.
And as a people we would not be complete.
There is another reason why reconciliation is important. It is a more practical one. Unless and until our processes of reconciliation draw towards completion, as I believe they must, we are also failing to unleash the full human, economic and political potential for nearly half a million of our Indigenous brothers and sisters. That is a loss to the nation. It is a loss to Indigenous peoples themselves. It is a loss to us all.
Reconciliation is easy to say. It is hard to do. It is also difficult to define. We seem to know what reconciliation is when we sense its absence. We don’t seem to talk much about a “reconciled society.” This is worth thinking about more deeply.
When we talk about reconciliation, are we talking about a “state of mind” or set of social attitudes? Are we talking about a framework of policy and law? Are we talking about measurable social and economic conditions? Of course, we are talking about all the above.
The essence of reconciliation is the acceptance that a deep wrong has been committed, by one person against another, by one group against another, or most disturbingly by one race against another.
Acceptance that a wrong has been committed is hard. Because of all the frailties of human nature, such acceptance can take a long time. The world today is full of excuses as to why such wrongs were never seen as wrongs in the past and why we should not indulge in retrospective ethics. This leads to dangerous ground indeed. Human pride is a profound and powerful emotion. Human pride, particularly embedded in entrenched historical narratives about one people’s prejudices against another, can be lethal.
If acceptance is the first step, then an apology for past wrongs is the next. And of course that apology must be accepted.
This again can be a hard thing to do. In the offering of an apology, if it is genuinely meant, weasel words are to be avoided. People are not stupid. Half measures can be spotted at a thousand paces. Escape clauses litter our political landscape. In our quest for reconciliation, we must be particularly mindful of the simplicity of the biblical injunction of “let your yes be yes, and let your no be no.”
There is also the usual cautionary advice that we shouldn’t be held responsible for the sins of our fathers. My response to this has long been if we are willing to appropriate the positive dimensions of our heritage as the objects of contemporary pride, either personal or national, then it follows that we cannot behave as Pontius Pilate on the darker actions of our collective past.
The acceptance of an apology for past wrongs is much harder than its rendering. An apology, after all, is in large part a matter of words. For those who have been profoundly wronged, apologies can be seen as trivializing the depth of the damage and hurt that has been done. Words, notwithstanding the obstacles constructed by our egos in actually speaking them, are in the end simple. But for reconciliation to be something more than words, an apology must be received as well. And if you have experienced the multiple indignities of Indigenous Australians, this is by far the harder road.
There is a further step as well. Beyond the simple words of an apology, actions must be taken to bring about a level of restorative justice, either for the individuals who have been wronged, or in the case of Indigenous Australians, for Indigenous Australia as a whole. The national apology delivered seven years ago was incomplete. Actions have to match our words. And that can mean putting your money where your mouth is. Some Indigenous leaders pointed to the absence of restorative payments to surviving members of the stolen generations, separate to the national program of “closing the gap” between Indigenous and non-Indigenous Australians at large. During the last national elections I undertook to revisit this if we were returned to office. That proved not to be the case.
There is of course a remaining part of our road to reconciliation which has yet to be travelled at all. This lies in the process of formal political recognition of those who have been wronged, and who should never have been wronged. In mourning the race-based murder of a group of African Americans at prayer in an Atlanta church earlier this year, President Obama observed: “Recognition precedes justice.” It is as if recognition, formal recognition, public recognition, political recognition, and in the context of the current Australian debate, constitutional recognition, completes a process which commences with a much earlier societal acceptance that great wrongs have been committed.
Reconciliation, particularly when it applies to the deepest sensitivities of race is, therefore, the most difficult, and at times, the most volatile of processes. In reality, reconciliation is a complex of changing social attitudes, of emerging equalities, and of policies and laws that both advance and, in time, recognize the same. In Australia, while we have made some progress along this path, there is still much distance, and many obstacles, that lie ahead.
Reconciliation in Australia
Its a long time since the events of 1967. I remember clearly attending the commemorative and celebratory events of 2007 held at Old Parliament House on the 50th anniversary of that landmark referendum. It was humbling to meet those who mobilized a nation at a time when racial stereotypes about our Indigenous brothers and sisters had changed little since the early years of European settlement. Remember, this was a time when the “stolen generations” were still being stolen.
I also remember, perhaps my earliest political memory, walking into a polling booth with my father, a member of the Country Party, at the Eumundi State Primary School in conservative rural Queensland in 1967, as he, to my surprise, voted “yes.” Or at least that is what he told me.
The truth is, much of the hard work on the road to reconciliation in this country has been done by those who have come before us. They deserve our admiration. Australians, both black and white, who lead the charge against the prevailing winds of searing prejudice. These were bare-knuckled days, compared with the discourse in which we are now engaged. We should therefore honour the contributions of those who have brought us this far. We should also be humbled by them as we consider our current travails on constitutional recognition. The veterans of the ’67 referendum; of the earliest land rights legislation, including Dunstan, Lingiari and Whitlam; of Keating and Redfern, then Mabo and Wik; and then the “Bringing Them Home Report” on the Stolen Generations. We all play our part. But we are all small in the wide sweep of history.
We in Australia have indeed come a long way on this road less travelled that we call reconciliation. At some point along this road, and it is difficult to identify when, we began to accept that a great wrong had been done to our Indigenous brothers and sisters, and that we were responsible. It became impossible to ignore, to sweep discretely under the carpet, even less to laugh off the conditions to which Aboriginal Australians had been reduced in the racist jokes that polluted our private and sometimes public conversations. We had, rightly, become uncomfortable in the depths of our national conscience. We knew something had to be done, without really knowing what.
With the work of the “Bringing Them Home Report,” coupled with that of the National Sorry Day Committee, we began to realize that the time for a formal national apology had come. I gave this undertaking to the Australian people in the 2007 election. And the apology became the first parliamentary act of my government.
It is for the nation to judge what impact the apology has had on the deeper question of reconciliation over time. The miracle of the apology, at least in my judgement, was not that it was delivered. The miracle of the apology was that it was it was acknowledged, accepted and, I believe, received. Something, it seemed, had melted in the hearts of Australians. Black. And white. It was as if we were able to see one another through new eyes, or at least through a different lens. Compassion, at least for a season, replaced prejudice, mutual recrimination and condemnation. Perhaps these were the tentative beginnings of deeper attitudinal change.
As part of the Apology, “Closing the Gap” was intended to deal with an entirely different dimension of any enduring reconciliation. It sought practical, funded, measurable programs to reduce, and in time, remove the structural disadvantages that divided Indigenous and non-Indigenous Australians.
These focused on health, education, housing, employment and the appalling gap between aboriginal longevity and that of the rest of the Australian community. These were not intended as noble aspirations. They articulated concrete goals within concrete timelines. They were anchored in funded programs, reflected in Australia’s first national agreement between the Commonwealth and the states on “closing the gap” signed in Darwin in December 2008, and involving both government and non-government sectors.
The critical factor is that we must have consistent, accurate data. I believe we now have the maturity as a national political community to confront the reality of Indigenous disadvantage, rather than sweeping uncomfortable data under the carpet, or worse ceasing to collect, collate or publish it. All future Australian governments should be held accountable against the policy objectives of closing the gap, and the data which keeps us honest. If the data tells us we are failing in particular areas, then let us have the imagination, without political recrimination, to do things differently.
For the future of “closing the gap,” it should be a dynamic, not a static process. It should not be regarded as a closed canon. Since leaving office, I have recommended we add new measures concerning Indigenous access to higher education. I have also argued that we must now add new measures concerning Aboriginal incarceration rates given the obscenity of the numbers we are now seeing. Earlier this year, on the anniversary of the Apology, I spoke too of the dangers of creating a “second stolen generation” arising from the alarming separation rates of aboriginal children from their family and kinship groups, while fully recognizing the alarming rates of domestic violence and child abuse. As a nation, we must not shrink from these challenges. We must embrace each of them together with the great Australian characteristics of courage, pragmatism and resolve.
In our great mission of national reconciliation, the national apology has made a contribution. I believe it has helped change social attitudes. I believe it has produced some progress in reducing Indigenous disadvantage. But I also believe it is but one part of our greater effort to “bend the arc of history.”
The constitutional recognition of the first Australians is the next stage of our long national journey towards national reconciliation. There has been a long national conversation on this over many, many years. It was among the key resolutions of the 2020 Summit convened within a month of the national apology in 2008. It became then a core commitment of the newly elected government. The journey since then has indeed been a long one. In fact far too long.
The importance of constitutional recognition lies in both simple concepts of respect, and simple recognitions of reality. Respect for the unique status for this the oldest continuing culture in our human family, whose continuity reaches back to deepest antiquity, connecting us to the indigenous mysteries of creation.
Reality because those of us who have come uninvited to this Continent from various communities around the world, to live and have our being in this vast continent, represent but a recent blip against the 50 millennia and more of continuing Indigenous occupation.
With the advantage of historical hindsight and contemporary reflection, there is a stunning arrogance in the language of our Constitution. Of course this was consistent with the age. We are familiar with the doctrine of terra nullius, not to be overturned by the Australian courts for almost another century. But reflecting these grandly imperial assumptions of the age, our founding legal document saw Indigenous peoples almost exclusively as a problem, not as a people whose prior occupancy of “terra australis incognita” was in any way worthy of respect. Constitutional change must set these wrongs to rights.
Consistent with these changing realities, the formal repeal of the provisions of our constitution that are discriminatory in law, and condescending in nature, is essential. These do not belong in any civilized constitution of the 21st century. No other people within our Australian family, least of all the first Australians, would or should tolerate the language of race in our founding covenant.
This brings us to a further and more profound change, the scope of which lies beyond these legal realities. There is a sense, which we should not dismiss lightly, that by finally recognizing Indigenous Australians in our shared constitution, and by removing its antiquated discriminations, we are also reflecting underlying changes in Australian social attitudes towards indigeneity, which in turn gives rise to further changes in an increasingly reconciled society.
In my mind, the ultimate objective is to cause all Australians to have about them a spontaneous national pride in Indigenous Australia. That has not been the case so far. It is, however, now becoming the case. We see this already in the national and international prestige attached to Indigenous art, design and dance. I believe this appreciation will progressively deepen and broaden into new areas of Indigenous creativity, professional engagement and enterprise. This trend sits comfortably with, and in my view, is furthered by, the impending reality, we hope, of constitutional recognition.
I am aware of the content, complexity and texture of the current discussion within Indigenous Australia, and between Indigenous Australians and the rest of the Australian community, on the desired content of the constitutional amendments to be put to the Australian people. Hard questions have been raised. And harsh things have, from time to time, been said.
I am aware of the discussion over preambular paragraphs versus explicit Indigenous recognition at the beginning of the Constitution proper. These phrases should reflect the fact of our indelible Indigenous heritage, that this is a living heritage, and therefore an equally indelible part of our common Australian future. And given the findings of our courts in recent decades, these acknowledgements should also include the enduring connection between Indigenous Australians and the land and the waters of our shared continent. The poetry of these phrases should also be memorable, not written by a committee, so that these too become etched in the minds and souls of all Australians for generations to come.
The other explicit reference to race in the Constitution is in Section 51 (26). This empowers the Commonwealth to make laws for “the people of any race for whom it is deemed necessary to make special laws.” The debate here is how to amend this provision in a manner that preserves the Commonwealth’s power to legislate for the specific purposes of Indigenous Australia, without explicit recourse to a race power.
There then follows the contentious debate over the inclusion or otherwise of a new and explicit constitutional provision that would effectively import the relevant provisions of the Racial Discrimination Act of 1975 into the Constitution proper. This would, in the argument of its proponents. prevent any future parliament from legislating in a manner injurious to the interests of Indigenous Australians.
There is then a further debate over the desirability of an Indigenous advisory body to advise future governments and parliaments on the impact of proposed legislation on the interests of Indigenous Australians, and if so, whether such and advisory body should be anchored in the Constitution or in legislation.
I do not believe it is productive for me to engage in the debate over these more contentious questions of constitutional reform. That, in my view, is properly the province of Indigenous Australians and their engagement with the Australian political process. I am happily no longer part of that process.
But I would, mindful of my direct experience in the preparation of the National Apology, caution against the rigidities of a debate that sees “the perfect” triumph over “the good”, only to see the perfect defeated in the potential political ugliness of a divisive referendum.
In 2008, the government consulted widely on the content of the apology. I received conflicting advice from different quarters. In the end, I made the call, and wrote it myself. The Apology was far from perfect. But we did manage to carry the nation with us. We also, in an even greater miracle, were able to carry her Majesty’s loyal opposition. Had we failed to do so, the Apology, and all that came as a consequence of it, along the long and torturous road to reconciliation, including the practical measures contained in “Closing the Gap”, would have been rendered null and void with the inevitable twists and turns of the political cycle.
The degree of political difficulty with a referendum to amend the Constitution is much greater. The vicissitudes of the House, in which the government commands a majority, is little compared with the vicissitudes of public opinion, if and when a politically effective ‘no’ case is mounted, irrespective of whether it is formally endorsed by one political party or another. The race demon has not yet been fully exorcised or expunged from our national soul.
All this is by way of saying that obtaining bipartisan political support is essential to see constitutional change through the hazardous waters of a referendum. A failure to obtain such support would most likely result in the proposal for a referendum dying before it was actually put to the people. Or if it was, we would run the greater risk of a divisive national debate on race which would deeply scar our as yet fragile tissue in the living process of reconciliation. Imagine too the reaction around the world if we went to the people on a divided, or at least divisive proposition, which saw the proposition voted down. The world would conclude that the ghosts of White Australia had somehow returned in a different form.
We should be cautious about any such risk, given how far we have now come. I respect the views of my Indigenous brothers and sisters who warn against constitutional nominalism, the trivialization of symbols and the triumph of symbols over substance. I therefore do not argue for a minimalist approach. I believe the new Prime Minister has an open mind on these questions and unless I am proven to be wrong, has a deep empathy for Indigenous Australians. Furthermore, the previous Prime Minister and the Leader of the Opposition, have also sought to improve consensus in the recent roundtable they convened at Kirribilli. What I argue for is for the most expansive consensus possible to be forged among Indigenous Australians and between them and the Australian political process. And while the national climate is still ripe, to get on with it.
I genuinely fear the loss of national political momentum on constitutional recognition. The Australian public want it. Let it not degenerate into a public bun-fight. And let’s remember that an agreed form of constitutional recognition provides a better starting point for ultimate justice than the present constitutional silence. Even what some might call “symbolic” constitutional change can usher in a further era of substantive policy change, changing the way we do business when governments and parliaments come to consider the distinctive needs and entitlements of Indigenous Australians in the future.
There is a sense that each stage of the reconciliation process builds on the previous. It creates momentum. And it is capable of further renewing momentum.
There will be an election next year. Both sides of politics will commit to constitutional recognition. A constitutional convention will then need to be convened. And 2017 is not far away. We should be very wary of the risks of political dissipation as other priorities emerge, or as the political process concludes that consensus on recognition is deemed too politically difficult or simply impossible.
We should remember that there is indeed “a tide in the affairs of men, when taken at the flood, leads on to fortune. Omitted all the voyage of their life is bound in shallows and miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures.”
Let us not miss that tide. Let us grasp this opportunity to take this difficult national journey of reconciliation with the first Australians to the next stage. Let us for a moment lift up our eyes from the trenches of political battle, and gaze for a moment upon the mountains, unleashing our imagination on the new possibilities that might just lie beyond constitutional recognition, towards an Australia that is utterly, wonderfully, magnificently racially blind, where Australians are indeed judged “not by the colour of their skin, but by the content of their character.” That is the Australia we desire with all our hearts.
Reconciliation has indeed been a long journey for this nation of our’s – Australia. For Indigenous Australians, this journey has been the longest of all.
It is a journey in which we all have a stake. In which we all have a responsibility as women and men of good will. And in which we all have our part to play. Be it large or small.
Mine has been with the Apology. It has also been with closing the gap. And of course I stand ready to do more, as I have long believed it is right to stand on the side of Indigenous Australia, to be in their corner, rather than to have them stand alone.
To this end I have established the National Apology Foundation for Indigenous Australians. And as we speak, the Parliament is this week passing legislation to afford this foundation, committed to perpetuating the spirit and objects of the apology itself, DGR status, for which I am thankful to the previous Treasurer, and his successor.
The Board of the National Apology Foundation has agreed that one of its major priorities over time is to raise an endowment for a permanent Chair here at the Australian National University dedicated to the explicit analysis of the policies necessary for, and the core data associated with, “closing the gap.” To be blunt, whoever the future government of Australia happens to be, we want to keep the bastards honest. We want to ensure the necessary data is collected to measure our success or failure in bridging the inter-generational gap of entrenched Indigenous disadvantage. This mission must continue beyond the passing seasons that we call politics.
The Chancellor tells me such a Chair will need a $5 million endowment. I’m tempted to say, to paraphrase that great work of Australian cinematography, and the array of philosophers portrayed within it, that “they’ve got to be dreaming.” We will talk about the numbers, and of course the university’s own contribution. Today however I wish to announce I will be making an initial personal contribution of $100,000 to the Foundation to begin this fundraising campaign. As the song says, from little things, big things grow.
Indigenous reconciliation is a challenge not just for Australia. It is a challenge for the 350 million Indigenous peoples of the world and the settler communities and countries in which they live. Indigenous peoples around the world are amongst the most poor and oppressed. As in Australia, throughout history, they too have been pushed to the margins.
The sad reality is that many countries have simply given up on the universal moral challenge of reconciling with their Indigenous peoples. Sometimes this is the product of indifference. In others it is a question of political inconvenience. For others still there is a sense of “learned helplessness:” that because Indigenous disadvantage has become so entrenched, simply nothing works.
Let Australia yield to none of these. Let Australia instead, as we attend to our own real challenges in achieving reconciliation in our own land, encourage others around the world to do the same. And so too, together, indeed “bend the arc of history”.