Leading ‘Yes’ advocate Noel Pearson details how the campaign is turning a corner, how the Voice would function, and how it would complement state treaty processes. By Kerry O’Brien.

The Pearson interview: ‘How does the elephant sit down with the mouse’

Portrait photograph of a man wearing a black hat matched with a corduroy blazer.
Lawyer, academic and leading “Yes” campaigner Noel Pearson.
Credit: James Brickwood / Nine

Kerry O’Brien It’s clear that the “Yes” campaign for this referendum has got off to a rocky start. The trend line away from the “Yes” is hard to deny. How do you see yourselves turning that trend around?

Noel Pearson I am getting a good feeling about the campaign now. I myself was despondent, you know, a month ago. But we’re in the fourth week of a refreshed campaign. I think the campaign has a new kind of energy and optimism. The trend in the past has been good because, you know, up until the Liberals decided to oppose this the numbers were very, very good for “Yes”. This thing won’t be won by a wide margin. But nevertheless, I’ve got every indication going around the countryside that we’re in a good position.

KOB So when you talk about a new campaign, a refreshed campaign, do you simply mean more of the same with fresh energy or do you mean fresh directions?

NP You know, setting it up, it’s enormous infrastructure that’s got to be mobilised and we needed the thing to get out of the parliament. And once that happened, then we could stand the campaign up properly. You know … prior to this, Thomas [Mayo] and a few others have been really the only people out there pre-campaign. Now Thomas is joined by a whole lot of us that are coming in and building the momentum for the campaign.

KOB The “No” campaign, where it seems to have been successful, has been around creating controversy and asking lots of questions, relying on the mainstream media and some very close targeting in social media. What’s your reason for confidence that you can rely to some significant degree on getting positive messages out in the mainstream media and through social media?

NP We’ve had the best media for the past year over the last three weeks. We know that it’s tough with the mainstream media. The “No” campaign has had a pretty easy run for many months now. But what I found personally, and I’m seeing it with some of my colleagues in the campaign, is that just continuing to talk of an opportunity for the country, we’re starting to see a much more even coverage and positive coverage of the “Yes” campaign’s message, and the virtuous cycle starts to spin … We’re getting clear about how we can communicate what is otherwise a very complex and multifaceted, multilayered issue. And we’re kind of condensing it down to a core message that can be understood by the Australian public.

KOB So what is that core message that you have not been able to get out yet?

NP The core message is that this is about recognition of Aboriginal and Torres Strait Islander people as the First Peoples of Australia and that the provisions that the prime minister has steered through the parliament … is about guaranteeing a body. The provision says there shall be a body to be called the Voice. The second aspect is that the purpose of this body is to make representations to the parliament and the executive government about matters affecting Aboriginal and Torres Strait Islander people. And thirdly, it’s the responsibility of the parliament, which will have the power to make laws about all the details, the details being composition of the body, the functions of the body, the powers and procedures of the body. I’ve found that this explanation, you take people through the four limbs of the actual alteration we’re being asked to vote on this referendum, the light switches on: recognition, the guarantee of the body, the purpose of making representations and lastly, the detail, which is the responsibility of the parliament.

KOB So do you acknowledge the limits that are being placed on this Voice? What do you acknowledge those limits to be, and are you happy to embrace those limits? 

NP The democracy we have rests entirely on the lawmaking function in the parliament, and there’s no restraint on that – the only restraint is the constitution. And so when you establish a body that can make representations to the parliament, that body can have constitutional status and eminence that arises from being in the constitution. But there’s no body in the world that, for example, gives a body like this a veto over the functioning of parliament. So when people say, “Oh, this body is going to have no limitation on parliament, not be able to veto parliament”, well, nobody in the world can do that. Parliaments are supreme. That’s how democracy works.

KOB But there is no constitutional power for the advice of the Voice to be accepted. The only other thing it seems to me that is going to get you across the line with advice being heard is the integrity and the effectiveness and the strength of the advice that’s being given, and that it is genuinely representing grassroots communities.

NP That’s right. And as in any democracy, the advice that is provided to the parliament remains to be weighed against other advice and other representations. It’s up to the parliament and the government to weigh the advice, recommendations and ideas that are presented by the Voice.

KOB So how can you be sure that a Voice to Parliament enshrined in the constitution will actually be able to close all of those gaps in equity across so many parts of the social fabric of this country in relation to Indigenous people?

NP Because if we have a local and regional footprint for the Voice that directly connects with the national Voice, we’ll be able to tackle those issues involved in closing the gap. It’s like a pyramid. The pyramid has the constitution at the very top, the apex. But then you have legislation that comes out of the parliament, and then you have programs and policies that flow from the legislation, and you have agreements that flow from them at the community level … And we will have a system that connects the constitutional recognition of the Voice down to a local footprint in these communities that sets up a new relationship between those communities and governments so that they can sit down and make agreements about what the community will do and what various levels of governments will do to tackle each of these policy areas that are involved in closing the gap.

KOB Governments since the 1967 referendum have not always ignored Indigenous advice. Are you able to point to examples where governments have listened to Indigenous people on what policy should look like and where those policies have then worked, or have the policies still failed?

NP Bill Stanner in 1968 said we’ve got to mobilise “the one-eyed hobbyhorses”: health, education, housing. They’re the usual ones we’ve been trotting out for a hundred years … And, he said, they’re all important. But if you don’t address the fundamentals of what we would call recognition, you know, the country accepting that Indigenous people are the First Peoples of this land and that they should be able to map out a future for themselves that is of their own determining, that allows them to be part of Australia but not be forced into assimilation … unless you get the headline policy of recognition right, they’re going to come to nought.

And we have made progress. You know, the poverty of my parents’ generation is behind us now. My siblings have grown up in a world of greater opportunity for us and our children than in the past. But the fact is that we need to do so much better. There’s a lot of things in the way government deals with us where the investment just doesn’t produce the outcomes that we need. And on some parameters, we’ve gone very, very fundamentally backwards, and getting the power relationship right between government and Indigenous communities is absolutely critical.

KOB At the core of your argument, apart from that moral imperative and that symbolic imperative of recognition, is that you’ve got to find a new way to close these gaps of fundamental inequality. And there are still many other Indigenous people living in the most abject poverty, still suffering not just the generational trauma, but still suffering the conditions that the previous generations had.

NP Absolutely. You know, the crucial thing is empowerment. The Royal Commission into Aboriginal Deaths in Custody, they produced their report in 1991. Elliot Johnson said there’s these 339 recommendations and they cover the whole gamut of policing and everything else to do with deaths in custody. But he said at the end of the day, is this issue of empowerment, the empowerment of Aboriginal and Torres Strait Islander peoples, families and communities so that they can take charge of their own lives … But the commission never gave us a blueprint of how do we empower peoples ... And 33 years now since that report, no one has come up with an idea of how does the elephant sit down with the mouse and come to a new relationship that empowers those communities … I think the Voice represents a new opportunity to answer the question of empowerment.

KOB Assuming that we get the Voice, but that parliament still has the capacity to change the nature of that Voice, and at any point, how can you have confidence that in say 10 years’ time the effectiveness of that permanence will be protected?

NP Well, the difference is in the actual clause that we’re adopting in this referendum, and that is the clause that says there shall be a body. That’s different from the past, right? Yes, the body could change and the details could change. But you can’t, as we have done over the last decade and a half, just scrap ATSIC [Aboriginal and Torres Strait Islander Commission] and then put nothing else in its place. As bad as people say ATSIC was, people who say that actually don’t understand that at the regional level, that was a very good thing. If you come to Cape York Peninsula, I can point to you very good things that came from the regional footprint. And at the national level, we wouldn’t have the Native Title [Act] if Lowitja O’Donoghue hadn’t led the national commission in defending the Mabo decision and partnering in a very intelligent way with the Keating government. There’s a very cheap and easy accusation to be made that in that latter period of ATSIC, when it became chaotic and there were power struggles with the people that came after Lowitja … The last 16 years have been a disaster compared to that period. We have really fallen into decline in Indigenous Australia.

KOB Is part of your confidence in the Voice’s resilience arising from the increasing depth in quality and dynamism of Indigenous leadership around Australia?

NP We have such a talent and there’s another generation coming through … they’re the ones who are going to take the Voice and they’re going to make it work. Lowitja showed me the leadership that’s necessary and she mentored and encouraged my generation. I see my job here and our colleagues’ job is to set up these young people when this Voice is established … they’re the ones who are going to make it work.

KOB We’re seeing scare campaigns about how the Voice is going to close the parliament, clog up the courts and so on. You were in the eye of the storm after the High Court made its judgements on both the Mabo and Wik claims – residents in the big cities were going to lose their backyards and the pastoralists were going to lose their farms. Neither of those things happened, of course. How do you combat scare campaigns and focus on your positive message?

NP Yeah, well, as you know, not one square metre, not one square metre was lost by an Australian as a result of Mabo and Wik. And yet there was a very ferocious campaign of fear and misrepresentation and I would just remind Australians about the great gulf between the scare campaign and the truth … We’ve got to have faith that the majority of Australians will see through this. I keep saying to people that said this was all impossible, we’ve passed every milestone on the Voice. People said, “You’ll never get consensus amongst your mob.” And we got consensus at Uluru. People said, “You’ll never get it through the parliament.” Well, it’s through the parliament. So I’m just continuing on that same trajectory of belief that we can do this and I can point to four or five really crucial moments over the last 12 years where people have said that is going to be impossible. One prime minister said point-blank to me, “You’ve got a snowflake’s chance in hell.” Well, we’re now literally months away from a referendum…

KOB Which prime minister was that?

NP That was Malcolm Turnbull. The important thing is, we kept Uluru alive. You know, this has gone through five parliamentary terms, remember. We kept the hope alive.

KOB Now, as we know, the Uluru statement is like a trilogy. It’s Voice, Treaty, Truth. It was my understanding that Anthony Albanese had committed to implementing all three of those elements. Suddenly that seems to be coming up for question, as evidenced by his interview on Radio National Breakfast on Wednesday morning, where he would not commit to implementing at some point a national treaty or treaties. Does that surprise you?

NP I don’t read it like that. I read it like this: that without a Voice we have nothing. We’ve got to win the Voice first, and that has to be our focus. And we can load up the political task list now, but I don’t think that that’s helpful. I think the thing we have to focus on now is the task at hand, which is the Voice and without which no other agenda is possible, will be possible.

KOB Why wouldn’t it be possible to have a treaty process without the Voice enshrined in the constitution? If you look at Queensland, they’re on a pathway to Treaty now, without a formal Voice.

NP I have a view that even the Queensland process will hit a brick wall. At the end of the day, you need the Commonwealth, which is the funder of Indigenous Affairs, to be part of the solution because you can make all the commitments you like, but if we don’t have intergovernmental commitments for the financing and funding of initiatives in health, education, justice and infrastructure and everything, you’ve got a bunch of commitments without the means to live up to them.

KOB What do you say to those Indigenous people for whom Lidia Thorpe struck a chord when she said that the Treaty was a bigger priority than the Voice?

NP My view is that we have our work cut out enough with getting this Voice over the line. And then it’s up to the Voice to take the Uluru agenda to the next phase and to work with the Albanese government on that, or any subsequent government, if there’s a change at the next election. We have got to be very hard-nosed about this. We’re a minor political force in the Australian democracy, we represent 3 per cent of the population. We have got to be smart about this.

KOB You and I are old enough to have seen past referendums fail. I’m older, so I’ve seen more failures. It’s often much easier to mount a campaign against something than for it – the more information you put out, the more scope you give the other side to muddy the waters. The more you try to limit the conversation, the more they can paint you as being evasive.

NP It’s not just the dilemmas associated with what does this look like in detail in legislation. It is trying to remain true to the constitutional provision … You’ve got to make it clear to the Australian people, if you did produce a bill … even if it goes through the parliament unchanged, parliament always has the power to produce bill No. 2 to replace it. That’s how the provision works. It gives the parliament the power to determine what the legislation is at any time … My example, when I explain this to groups – and they get it – is the ABC was first legislated in 1932 as a commission, Australian Broadcasting Commission. Then it’s amended in 1942 and then it’s completely overhauled in 1983. And we have the Australian Broadcasting Corporation Act. Now, these are different versions of details about the ABC, but the constitutional provision remains the same.

KOB I remember the young guy who seemed to come out of nowhere when you appeared on behalf of your Cape York community in the Mabo deliberations. Your personal involvement has been a very long struggle. I’m talking in purely personal terms here now, just try to articulate briefly what it will mean to you if this referendum gets up, emotionally and intellectually.

NP I mean … this is work that I picked up from Pat Dodson’s Council for [Aboriginal] Reconciliation, which was a 10-year exercise from Hawke and Keating to try and ginger up support in the Australian community for settlement, those were the words that were used, and of course Pat’s work at the time was disrupted by the change of government in 1996. Along with other Indigenous leaders, I’ve been picking up the baton from 1996 and trying to help take it to a conclusion. And if we get this Voice up, then the business of getting … whatever word you use, Makarrata, document of reconciliation or Treaty, that is what we’ve been working towards. And you know, I think the Voice will be a very strong foundation for achieving this document of reconciliation, of national settlement.

KOB And what is the picture in your head in the event that this referendum, like so many others before it, fails? What will it mean for us as a nation? And what will it mean for you personally?

NP I can’t contemplate that now … I get asked that at every event.

KOB I know. And that’s why I’m asking it now, for the same reason.

NP My answer is … What do you say? What do you think is going to happen if the outstretched hand of Uluru is refused?

KOB Well, I think this country will go backwards. I think Indigenous status will go backwards. Like you, I don’t want to contemplate it, but I think we have to. I think people have to be assisted to, actually. I think people have to comprehend just what is at stake here.

NP The fact is a “No” result will not be costless. It will have a huge cost attached to it. 

This article was first published in the print edition of The Saturday Paper on August 5, 2023 as "The Pearson interview: ‘How does the elephant sit down with the mouse’".

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